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REPORTS OF CASES
BEFORE
THE HIGH COURT
CIRCUIT COURTS OF JUSTICIARY
U SCOTLAND,
DURING '
THE YEARS 1848, 1849, 1850, 1851, 1852.
BY
JOHN SHAW, ESQ.
ADVOCATE.
EDINBURGH:
T. & T. CLARK, LAW-BOOKSELLERS.
LONDON : BENNING & CO.
MDCCCLIII.
PRINTED BV MACPHEKSON & SYME, 12 ST DAVID STKEET, EDINBUKGH.
JUDGES
OF THE
COURT OF JUSTICIARY
DURING THE PERIOD OF THESE REPORTS.
LOED JUSTICE-GENERAL.
1841. The Right Honourable DAVID BOYLE.
LORD JUSTICE-CLERK.
1841. The Right Honoheable JOHN HOPE.
LORDS COMMISSIONERS OF JUSTICIARY.
1824. JOSHUA HENRY MACKENZIE, LORD MACKENZIE.
1829 Sia JAMES WELLWOOD MONCREIFF, LORD MONCREIFF.
1830. JOHN HAY FORBES, LORD MEDWYN.
18,37. HENRY COCKBCRN, LORD COCKBURN.
1843. ALEXANDER WOOD, LORD WOOD.
1849. JAMES IVORY, LORD IVORY.
1850. DUNCAN M'NEILL, LORD COLONSAY.
1861. JOHN COWAN, LORD COWAN.
1852. ADAM ANDERSON, LORD ANDERSON.
LORD ADVOCATE.
1846. ANDREW RUTHERFURD.
1851. JAMES MONCREIFF.
1842. DUNCAN M'NEILL.
1852. ADAM ANDERSON.
1852. JOHN INGLIS.
SOLICITOR-GENERAL.
1846. THOMAS MAITLAND.
1850. JAMES MONCREIFF.
1851. JOHN COWAN.
1851. GEORGE DBAS.
1842. ADAM ANDERSON.
1852. JOHN INGLIS.
1852. CHARLES NEAVES.
IV
1841. DAVID MILNE.
1843. DAVID MURE.
1845. CHARLES BAILLIE.
1846. GEORGE DBAS.-
1846. JAMES CRAUFURD.
1847. E. F. MAITLAND.
ADVOCATES DEPUTE.
1847. J. M. BELL.
1849. GEORGE YOUNG.
1850. THOMAS CLEGHORN.
1851. G. DINGWALL FORDYCE.
1851. ANDREW R. CLARK.
1841.
1847.
CROWN AGENT.
JAMES TYTLER, W. S.
JOHN CLERK BRODIE, W.
INDEX OF NAMES.
Balfour, David, High Court, July 20, 1850,
Barr, John, Ayr, May 1, 18S0,
Baxter, Gilea v., High Court, Mar. IS, 1849,
Beattie, Ebenezer, Dumfries, April 28, 18S0,
Bell, David, Perth, April 25, 1 8S0,
Bennison, William, High Court, Aug. 1, 1850,
Blytha «. M'Bain, High Court, Feb. 20, 1862, .
Blyth, Isabella, Perth, April 29, 1852, .
Bruce v. Duncan and M'Lean, Perth, Oct. 13, 1848,
Burnet, Bums «., High Court, June 12, J 850,
Burnett, Robina, and Others, High Court, Nov. 17, 1861,
Burnett, Etch and Golf d.. High Court, Mar. 16, 1849, .
Bums V. Moxey, High Court, Feb. 21, 1850,
Bums ». Bumet, High Court, June 12, 1850,
Cameron, William, Glasgow, Dec. 22, 1861,
Cameron, John, High Court, Jan. 31, 1860,
Chapman v. Colville, High Court, Dec. 14, 1850,
Clark, William, and Janet Gray or. Thomson, Aberdeen,
Sept. 20, 1849, .....
Chambers, Agnes, and Helen Henderson, High Court, July 26,
1849, ......
Chisholm, James, lEgh Court, July 9, 1849,
Colville, Chapman v.. High Court, Dec. 14, I860, . ,
Connor, Dennis, & Edward Morrison, Glasgow, Sept. 23, 1848,
Craig V. Steel, High Court, Dec. 20, 1848,
Crawford, Alex. Fraser, High Court, Jan. 6, & Feb. 11, 1850,
Crawford and Dill, Simpson v., High Court, Dec. 22, 1861,
Cross, Phillips and Ford v., High Court, Dec. 20, 1848,
Crossgrove or Bradley, Catherine, High Court, Feb. 6, I860,
Cumming, James, and Others, High Court, Nov. 7, 1848,
Daly, Helen, and Helen Kirk or James, Dumfries, April 27,
1850,
Dinwidie v. Knox, Stirling, April 1 7, 1849,
Dowd, Theodore, and Darby Furie, High Court, June 8, 1862,
Duncan and M'Lean, Bruce v., Perth, Oct. 13, 1848,
Duncan, Chrisjaan, Aberdeen, April 24, 1849,
Duncan, Walter, Perth, Sept. 26, 1849,
PAOB
Culpable Neglect of Duty, 377
Rape, &e.
362
Suspension,
203
Theft, &c.
356
Night Poaching,
348
Murder,
453
Suspension,
654
Murder,
567
Appeal,
12
Appeal,
373
Theft,
497
Suspension,
201
Suspension,
330
Appeal,
373
Theft,
526
Murder, .
296
Suspension,
466
> Murder,
267
Robbery or The
sft, . ?52
Falsehood, Frai
id, &c. 241
Suspension,
466
Rape,
5
Suspension,
148
Threatening Le
tters, &e. 309
Suspension,
623
Suspension, '
139
Theft,
301
5 Contravention
I 12th Vict. c.
of llth&
12, . 17
Theft, &c.
Appeal, . . 216
Theft, ... 676
Appeal, . . 12
Theft by Housebreaking, 225
I Breach of Trust and Em-
( bezzleraent, . 270
354
INDEX OF NAMES.
Duncan, William, and Alexander Gumming, High Court, ) „ .
March n,18S0, J * orgery, »c.
I Appeal,
Dundee and Union Whale Fishing Co., and Mavour and Pa-
ton 2,., Perth, Oct. 13, 1848,
Dutliie, Ann, Aberdeen, April 24, 1 849,
Etch and Golf «. Burnett, High Court, Mar. IS, 1849, .
Falconer and Others, High Court, Jan. 26, 1852,
Fegan, Alexander, & Elizabeth M'Kenzie or Hyde, Glasgow,
Sept. IS, 1849, ....
Finnie v. Gilmour, High Court, June 11, IBSO,
Flinn, James, and Margaret M'Donald, Perth, Oct. 12, 1848,
Fraser, Daniel, High Court, June 3, IBSO,
Galloway, Peter, High Court, Feb. 24, 18S1 ,
Glass, Methvent)., High Court, Dec. 20, 1848, .
Gibson, Jas., & Malcolm M'Millan, High Court, Mar. 12,1849,
Giles V. Baxter, High Court, Mar. 16, 1849,
Gilmour, Finnie v., High Court, June 11, 1850,
Graham v. Moxey, High Court, Feb. 17, 1849,
Hall, James, and Others, High Court, July 25, 1849,
Hamilton, John, and Mary Garden or Hamilton, High Court,
Jan. 2, 1849, . . . •
Henderson v. M'Auley and Go., Glasgow, April 26, 1849,
Henderson, Thomas, George Langlands, and John Williams,
High Court, Aug. 29, and 30, 1 850, . . 1
Hendrie, Wyher and Others v., Glasgow, Sept. 17, 1849,
Hogg, Thomas, High Court, June 9, 1851,
Howden, George, Jedburgh, April 8, 18S0,
Home, Watt v., High Court, Dec. 8,^1851,
Hoyes, James, High CoHrfr, Dec. 11, 1848,
Jameson v. Palmer, High Court, June 2, 1849,
Kennedy, E. of Selkirk, v., High Court, Dec. 14, 18S0,
kiellor, Jean, High Cotirt, Nov. 20, 1850,
Kilgour, Joseph, High Court, Dec. 8, 1851,
Kljppen, George, High Court, Nov. 6, 1849,
Knox, Dinwidie v., Stirling, April 17, 1849,
Launders v. Mann and Co., Perth, April 24, 18S0,
Lock, J. and P. Doolen v. Steel, High Court, Feb. 6, 1850.
Lockie v. M'Whirter, High Court, Feb. 15, 1849,
Lyon and Main, Macdonald v.. High Court, Dec. 8, 1851 '
M'Auley and Co. Henderson v., Glasgow, April 26, 1849,
Mackay, Meekison and Tutor v., High Court, Feb. 13 1849
M'Bain, BIyths v., High Court, Feb. 20, 1862,
Mackean «. Wilson, High Court, Deo. 9, 1 848,
Macpherson, Welsh v., Inverness, April 19, 1850,
Macdonald v. Lyon and Main, High Court, Dec. 8, 1851, Suspension,
i Wanton and Malicious
Mischief,
Suspension, . f .
Bobbery, &c.,»
Forgery,
Suspension,
Culpable Homicide,
Theft,
Culpable Homicide,
Supension,
Theft, &c..
Suspension,
Suspension,
Suspension,
Falsehood, Fraud, &c,
Reset of Theft,
Appeal,
Culpable Homicide, &c.
Appeal,
Murder,
Forgery,
Suspension,
Theft, &c.' .
Suspension,
Suspension,
ConcealmentofPregnaneyj
Theft, &c.
Falsehood, Fraud, &c.
Appeal,
Appeal,
Supension,
Appeal,
Suspension,
Appeal,
Suspension,
Suspension,
Suspension,
PAGB
335
15
227
201
546
261
368
9
365
470
146
191
203
368
168
254
149
219
394
266
484
351
619
134
238
463
,S76
501
276
215
347
307
161
516
2)9
169
654
1.S2
345
516
INDKX OP NAMES.
M'Gall, William, High Court, March 13, 1849,
J|:'Neillage, Hugh, Inrerary, Sept. 18, 1850,
M'Millan, Margaret, High Court, Jan. 6, 1851,
Manh and Co., Launders v., Perth, April 24, 186Q, '
M'Walter or Murray, Elizaheth, High Court, Feb. 2, 1862,
Marshall v. Turner, Glasgow, April 26, 1849,
Mathison v. Monkland Iron & Steel Co., Glasgow, Sept. 17,1849,
Matson, Alexander, High Court, Nov. 27, 1 849,
Mavour and Paton v. Dundee and Union Whale Fishing Co., J
Perth, Oct. 13, 1848, - . . . i
Meekison and Tutor v. Mackay, High Court, Feb. 1 S, 1 849,
Menzies, Alexander James Petty, High Court, Feb. 5, 1849,
Methven v. Glass, High Court, Dec. 20, 1848,
Middlemiss v. D'Eresby, High Court, March 16, 1852,
Miller, Arch., & Susan Brown or Miller, High Court, Jan. 3, 1850,
Mitchell, Hannah, High Court, Jan. 4, 1850,
M'Kichen or Charters v. Moir, Dumfries, April 19, 1 849,
Monkland Iron & Steel Co., Mathison?)., Glasgow, Sept. 17, 1849,
Mgoney, John, High Court, Nov. 17, 1851,
Mooney, John, High Court, Dec. 8, 1851,
Moxey, Graham v., High Court, Feb. 17, 1849,
Moxey, Telfer v., High Court, June 2, 1849,
Moxey, Bums «., High Court, Feb. 21, 1860,
Moxey, Sleigh and Russell v., High Court, June 12, 18S0,
Murdoch, John Elder, Perth, May 2, 1849, .
Muir, M'Kichen or Charters »., Dumfries, April 19, 1 849,
M'Whirter, Lockip v., High Court. Feb. 16, 1849,
O'Neill, John, High Court, June 2, 1851,
Park and Others v. Earl of Stair, High Court, Jan. 1 2, ) 862,
Paterson, John, and David Ritchie, Stirling, Sept. 7, 1848,
Peanver, Peter, High Court, Nov. 1 6, 1850,
Phillips and Ford ». Cross, High Court, Dec. 20, 1848,
Pilmer, Ritchie v., High Court, Dec. 20, 1848,
Pihner, Jameson ii:, High Court, June 2, 1 849,
Purves, James, High Court, Nov. 20, 1848,
Pyott, G. B. and W. B., High Court, June 16, 1851, .
Quillichan, Patrick, High Court, Jan. 24, 1852,
Rait, WilUam, High Court, Nov. 1 7, 1 85 1,
Reid, Veitch and Others v.. High Court, June, 2, 1 849,
Ritchie v. Pilmer, High Court, Dec. 20, 1848,
Robertson, James, Perth, July 28, 1850,
Robertson, John Gordon, High Court, Feb. 19, 1849,
Simpson v. Crawford and Dill, High Court, Deo. 22, 1851,
Saffley, Threshie v., Dumfries, April 1 9, 1 852,
Selkirk, Earl of,!), Kennedy, High Court, Dec. 14, 1850,
Sellers, Daniel, Inverary, Sept. 24, 1851,
Sleigh and Russell v. Moxey, High Court, June 12, I860,
Smith ». Skinner, Dumfries, April 8, 1851,
; Embezzlement and Breach
of Trust,
194
Cattle Stealing,
459
Culpable Homicide,
468
Appeal,
. 347
Swindling,
552
Appeal,
222
Appeal,
266
Murder,
127
Appeal,
16
Suspension,
169
Forgery, &c. ,
153
Suspension,
146
Suspension,
■ ^S7
Forgery, &c.
288
Murder, &c.
293
Appeal,
223
Appeal,
266
Theft,
496
Base Coin,
$09
Suspension,
168
Suspension,
231
Suspension,
330
Suspension,
369
Wilful Damage,
329
Appeal,
223
Appeal,
161
Theft,
483
Suspension,
532
Robbery,
!
Murder,
462
Suspension,
139
Suspension,
■ 142
Suspension,
238
Bigamy, ,
■ . m
Fire-raising,
. 490
Bigamy,
537
Falsehood, &c.
500
Suspension,
236
Suspension,
142
Murder,
447
Theft, &o.
186
Suspension,
623
Appeal,
563
Suspension,
463
Note, 648
Suspension,
369
Appeal,
481
VIU
INDEX OF NAMES.
Stair, Earl of. Park and Others v.. High Court, Jaa. 12, 18S2,j
Steel V. Craig, High Court, Deo. 20, 1848,
Steel, Lock, J. and P. Doolen v.. High Court, Feb. 6, 1850,
Stevens, John, Glasgow, Jan. 11, 1850,
Sutherland, Mai'y, and Isabella Gibson or Murray, High Court,
Dec. 11, 1848, ....
Tait, Jacob, and John Taylor, Jedburgh, April 16, 1851,
Taylor, John, Jacob Tait, Jedburgh, April 16, 1851,
Telfer v. Moxey, High Court, June 2, 1849,
Thomson, John, High Court, Dec. 4, 1848,
Threshie v. Saffley, Dumfries, April 19, 1852,
Turner, Marshall »., Glasgow, April 26, 1849,
Vance, Robert, Glasgow, March 23, 1849,
Veifoh and Others s.Reid, High Court, June 2, 1849,
Walker, James, Wilson and Others, Glasgow, Jan. 14, 1850,
Watson, Wilson ()., Perth, Oct. 1, 1851,
Watt V. Home, High Court, Dec. 8, 1851,
Welsh V. Macpherson, Inverness, April 19, 1860,
Wilson, Mackean «., High Court, Dec, 9, 1848,
Wilson «i. Wataon,Perth, Oct. 1,1851, . . '
Wyher and Others J". Hendrie, Glasgow, Sept. 17, 1849,
Suspension,
532
Suspension,
148
Appeal
307
Murder,
287
Con. 2d and 3d Will. IV.
u. 36,
1.3S
Deforcement,
475
Deforcement,
475
Suspension,
231
Con. 10th Geo. IV. c.
48, 129
Appeal,
563
Appeal,
222
Culpable Homicide,
210
Suspension,
236
NoU, 648
Appeal,
493
Suspension,
619
Appeal,
345
Suspension,
132
Appeal,
493
Appeal,
266
Yates and Parkes, Glasgow, Dec. 24, 1851,
Rape, &c.
528
REPORTS, &c.
WEST CIRCUIT.
STIRLING.
Autumn 1848.
Judges — Lords Moncreiff and Cockburn.
Her Majesty's Advocate — Deas A.D.
AGAINST
John Paterson and Datid Ritchie — Grahame.
Indictment — Locus — Variance. — Held that there is no land in
Scotland truly extra-parochial, and that in the case of a peculiar
jurisdiction it is sufficient to lihelthe offence alternatively, as having
been committed within one or other of the adjacent parishes.
Question, whether it is a fatal objection when a wrong parish is
named in the libel, if it be shewn in proof, that the locus mentioned
is situate in another parish.
John Pateeson and David Ritchie were charged jo^a'pa-
with Robbery ; as also Assault ; as also with Theft : teraon and
Ritchie.
In so far as (1.), on the 10th day of March 1848, or on one or Stirling.
other of the days of that month, or of February immediately preceding, Sept. 7.
or of April immediately following, on or near the public road leading 1_
from Stirling to Dumbarton, and at or near a part of the said public I'otbery.
road situated in the parish of Saint Ninians, or parish of Stirling, and
county of Stirling, and about one hundred and fifty yards, or thereby,
east from the bye-road leading from the said public road to the King's
Park Quarry, or at or near some other part of the said public road
situated in the said parishes, or one or other of them, to the prosecutor
unknown, you the said John Paterson and David Ritchie did, both and
each, or one or other of you, wickedly and feloniously, attack and as-
A
2 CASES BEFORE THE HIGH COURT
No. 1. sault John Johnstone, a shoemaker, then and now or lately residing
terron^n'd ^* °^ "^^'' TouCh, in the parish of Saint Ninians, and county aforesaid,
David and did seize hold of him by the shoulders, and did kick him upon or
^'*"'''^- near the feet and legs, and did thereby, or otherwise, bring him down
Stirling, upon his back to the ground, and did lie above him, and did place your
^ms.' ^^^^ °^ ^^''^^ "PO"! ^^^ mouth, and did rifle his pockets ; and you did,
■g^y^^J^ both and each, or one or other of you, then and there, wickedly and
^'^^' feloniously, and by force and violence, take from his pockets or person,
and did fob him of, a halfpenny copper piece, the property, or in the
lawful possession, of the said John Johnstone : Likeas (2.) on the
14th day of April 1848, or on one or other of the days of that month,
or of March immediately preceding, or of May immediately following,
on or near the public road leading between Stirling and Callander,
and at or near a part of the said road situated in the parish of Saint
■ Ninians, and county aforesaid, and one hundred and sixty-eight yards
or thereby to the eastward of Kildean Toil-Bar, in the parish of Saint
Ninians, and county aforesaid, now or lately occupied by John John-
ston, toll-keeper, now or lately residing there, or at or near some other
part of the said public road situated in the said parish and county, to
the prosecutor unknown, you the said John Paterson and David
Ritchie did, both and each, or one or othet of you, wickedly and felo-
niously, attack and assault Thomas Bilsland, a brick- moulder, then
and now or lately residing in or near Cowan Street, in or near Stirling,
and did, with your fist or fists, strike him a blow or blows on or near
his face, and did throw or force him down upon his face to the ground,
and did repeately strike him on or near the back part of his head while
he was lying on the ground, and did seize him by the neck or throat,
and endeavour to choke' him, and did thrust your hand or hands, or
part thereof, into his mouth, and did tear open his coat or great-coat,
and did search one or more of his pockets, and did otherwise maltreat
and abuse him ; and all this, both and each, or one or other of you,
did, with intent to rob the said Thomas Bilsland : Likeas (3.) on the
night of the 14th, or morning of the 15th, day of April 1848, or on
one or other of the days of that month, or of March immediately pre-
ceding, or of May immediately following, on or near Broad Street of
Stirling, and at or near that part of sajd street which is in front of, or
near to, the shop in said street then and now or lately occupied by
William Peddie, then and now or la,tely bookseller there, you the said
David Eitchie did, wickedly and feloniously, attack and assault Mar-
garet Clark, then or lately residing with James Roberts, in or near
Jail Wynd of Stirling, and now or lately residing in or near High
Street of Linlithgow, with her father, James Clark, shoemaker, and did
throw or force her down upon her back on the ground, and did forcibly
thrust your hand into the breast or front part of her dress ; and you
the said David Ritchie did, then and there, wickedly and feloniously,
and by force and violence, take from her person, and did rob her of.
Robbery.
AND CIRCUIT COUETS OF JUSTICIARY. 3
a small bag or purse, sevenpence sterling, or thereby, in silver money, No. 1.
and fourpence sterling, or thereby, in copper money, the property, or ^°^ ,
in the lawful possessiouj of the said Margaret Clark : Or otherwise, David
time and place last above libelled, you the said David Eitchie did, ^'*°^'^-
wickedly and feloniously, steal and theftuously away take from, or Stirling.
from near the person of the said Margaret Clark, the aforesaid bag or i848
purse, sevenpence sterling, or thereby, in silver money, and fourpence
sterling, or thereby, in copper money, the property, or in the lawful
possession, of the said Margaret Clark.
In the course of the trial, it appeared that the locus
stated in the libel, was situated neither in the parish
of St Ninians, nor in that of Stirling, but within the
extra-parochial jurisdiction or district of the constabulary
of Stirling Castle.
In respect of the second charge, it appeared that the
locus, although correctly described otherwise, was situate
not in the parish of St Ninians, but in that of Stirling.
Geahame for the pannels, in addressing the Jury,
argued in respect of the first and second charges, there
was a misdescription of the locus in the indictment. He
admitted that it would have been unnecessary for the
prosecutor to have named the parish, but contended, that
where a parish was mentioned, it was a fatal objection
if it was shewn in proof that the locus set forth was not
within its boundaries. Alison, vol. ii. p. 262-3, and cases
there cited, particularly those of Peter Gordon, Perth,
Sept. 28. 1812, Robert Henning, Aberdeen, Sept. 1821,
and Thomas M'Pherson, Inverness, Spring 1824.
Lord Moncreiff charged the Jury, that, in point of
law, there was no land in Scotland that was extra-paro-
chial. All land whatever was situated in some parish,
Ross V. Earl of Haddington, 3 Shaw, 115 (N. E. 76), and
therefore in describing the locus of the first robbery as
in the parish of St Ninians or parish of Stirling, he had
given the correct description, and there were no grounds
for sustaining the objection stated to that charge. In
regard to the argument maintained relative to the second
charge, the Jury would judge whether the evidence sup-
4 CASES BEFORE THE HIGH COURT
No. 1. ported the pannel's contention, that the crime, if com-
John Pa- '■ '^ tj T • A a
terson and mitted by the pannel, of which they would also juage,
RiteMe. was perpetrated at a spot in Stirling parish, instead of
Stirling. St Ninians, as libelled. As to the law which had been
m*8/' quoted, he had long been of opinion that it was errone-
Robbery. ous, and it was seriously doubted by some of the most
eminent lawyers at the time when the leading cases
were decided. It would be best for the Jury to return
a verdict with a special finding relative to this point.
The Jury returned the following verdict : — ' The Jury
' unanimously find both the pannels guilty as libelled,
' of the charges of robbery under the first and third
' charges in the indictment, and of the assault with in-
' tent to rob in the second charge, and are satisfied as
' to the accuracy of the locus mentioned in the indict-
' ment where the second charge was committed, but are
' not prepared to say in what parish.'
Whereupon it was objected, that this amounted to a
verdict of acquittal on the second charge, and the Advo-
cate-Depute declined to move for sentence on that part
of the case, confining himself to the first charge.
Lord Moncreiff said, he would have certified the
point had the Public Prosecutor moved for sentence.
He was not now required to do so, but he would inti-
mate that his own opinion was contrary to the view
taken by Mr Alison, and pressed by the pannels' counsel.
In respect of which verdict of assize, so far as regard-
ed the first and third charges, the pannels were sen-
tenced to be transported for the period of ten years.
AND CIRCUIT COURTS OP JUSTICIARY.
GLASGOW.
Judges — Lords Moncreifp and Cockburn. Sept. 23.
1848.
Her Majesty's Advocate — Deas A.D.
AGAINST
Dennis Connor and Edward Morrison. — W. H. Thornton.
Eape — Locus — Insufficient description. — Question, 1st, Whether,
in the particular circumstances, the locus, where a rape was said to
have been committed, was described with sufficient accuracy.
2d, Whether the description of the party said to have been injured
was not too vague.
Dennis Connor and Edward Morrison were charged No. 2.
with Rape ; as also, Assault, committed with, Intent to connor and
Ravish, and to the effusion of blood and injury of the ^o^^on
person : Glasgow.
Sept. 23.
1848.
In so FAR AS (1.), on the 25th day of August 1848, or on one or
other of the days of that month, or of July immediately proceeding, on A^g^idt'
or near the public or parish road commonly called or known by the
name of the Craig Road, leading from the farm-st§ading of the lands
or farm of South Medrox, in the parish of New Monkland aforesaid,
then and now or lately occupied by William M'Lean senior, then and
now or lately residing there, to or in the direction of Cumbernauld, in
the parish of Cumbernauld, and county of Dumbarton, and at or near
a part of the said road situated in the parish of New Monkland afore-
said, which is distant 246 yards, or thereby, from the farm -offices of
South Medrox aforesaid, or at or near a gate or entrance into a park
or field upon the lands or farm of South Medrox aforesaid, commonly
called the Kilknowe Park, situated in the parish of New Monkland
aforesaid, or at or near some other part of the said road, or of the said
lands or farm, situated in the parish of New Monkland aforesaid, to
the prosecutor unknown, you the said Dennis Connor did, wickedly
and feloniously, attack and assault Mary Houston, then and now or
lately servant to, and residing with, the said James M'Lean senior,
and did seize hold of her, and did, with a stick, or with some other
weapon to the prosecutor unknown, strike her two more blows on or
6 CASES BEFORE THE HIGH COURT
No. 2. near her breast and stomach, or other part or parts of her person, and
Connorand ^^^ P"^* y°^^ ^^'^^ under her petticoats, and upon her naked person,
Edward and did seize her by the throat to prevent her crying for assistance,
'^°"''"''°- and did throw or force her down to the ground ; and the said Mary
Glasgow. Houston having succeeded in rising from the ground, you the said
1848. ' Dennis Connor did drag or pull her some short distance, and did again
r; : throw or force her down to the ground, and did grasp her by the throat
Rape, and , ,.,.,,.. j j-j i-
Assault, m order to stifle her cries, and did raise her petticoats, and did lie
upon her, and did have carnal knowledge of her person, forcibly and
against her will, and did ravish her : Oa otherwise, time and place
last above libelled, you the said Dennis Connor did wickedly attack
and assault the said Mary Houston, and did seize hold of her,«and did,
with a stick, or with some other weapon to the prosecutor unknown,
strike her two or more blows on or near her breast and stomach, or
other part or parts of her person, and did put your hand under her
petticoats, and upon her naked person, and did seize her by the throat
to prevent her crying for assistance, and did throw or force her down
to the ground ; and the said Mary Houston having succeeded in rising
from the ground, you the said Dennis Connor did drag or pull her some
short distance, and did again throw or force her down to the ground,
and did grasp her by the throat to stifle her cries, and did raise her
petticoats, and did lie upon her, and did attempt to have carnal know-
ledge of her person, forcibly and against her will ; and this you the
said Dennis Connor did, with intent to ravish the said Mary Houston,
and to the injury of her person : Likeas (2.), time above libelled, at
or near a part of the said road, situated in the parish of New Monk-
land aforesaid, and distant 236, or thereby, yards from the farm-offices
aforesaid, or at or near some other part of the said road, or of the said
farm, situated in the said parish of New Monkland, to the prosecutor
unknown, you the said Edward Morrison did, wickedly and feloniously,
attack and assault ^gnes M'Callum or James, a widow, then and now
or lately residing with Malcolm M'Callum, a weaver, then and now or
lately residing at or near Annathill, in the parish of New Monkland
aforesaid, and did seize hold of her, and did throw her down to the
ground, and did fall or throw yourself upon her ; and she having suc-
ceeded in getting up from the ground, you the said Edward Morrison
did again seize hold of her, and did carry her to some short distance,
and did again throw her down to the ground, and did lie upon her,
and did raise or attempt to raise her petticoats, and did put your hand
on her mouth, and did wrap a shawl around her head and mouth to
stifle her cries for assistance, and did attempt to have carnal know-
ledge of her person, forcibly and against her will ; and this you the
said Edward Morrison did with intent to ravish the said Agnes
M'Callum or James, and to the injury of her person : Likeas (3.)
time above libelled, at or near the dwelling-house, situated at or near
South Medrox aforesaid, then and now or lately occupied by the said
AND CIRCUIT COURTS OF JUSTICIARY. 7
William M'Lean senior, or at some other place or places at or near No. 2.
Spnth Medrox aforesaid, and in the said parish of New Monkland, to Q;o„™°and
the prosecutor unknown, you the said Dennis Connor and Edward Edward
Morrison did, both and each, or one or other of you, wickedly and fe- Momaon.
loniously, attack and assault William M'Lean junior, son of, and then Glasgow.
and now or lately residing with, the said James M'Lean senior, and ^^^g_ *
did, with your hands and feet, or with one or more of them, and with — ;
• 1 7 1 1 -11 Rape, and
a stick or bludgeon, or with some other weapon or weapons to the pro- Assault.
secutor unknown, inflict several severe blows on or near his forehead
and other parts of his person, and did wrestle with him, and did throw
or force him down to the ground, and did otherwise maltreat and abuse
him ; by all which, or part thereof, he was cut and wounded, to the
effusion of his blood and the injury of his person : Farther, James
M'Lean junior, then and now or lately farm-servant to, and residing
with, the said James M'Lean senior, having gone to the assistance of
the said William M'Lean junior, you the said Dennis Connor and Ed-
ward Morrison did, both and each, or one or other of you, time and
place or places last above libelled, wickedly and feloniously attack and
assault the said James M'Lean junior, and did seize hold of him, and
did struggle with him,jind did throw or force him down to the ground,
and did fall above him, and did, with your fists, repeatedly strike him
on several parts of his person, and did otherwise maltreat and abuse
him ; by all which, or part thereof, his face and eyes, or one or more
of them, were scratched and wounded, all to the injury of his person :
And you the said Edward Morrison being conscious of your guilt in
the premises, did abscond and flee from justice.
The pannel Morrison having been fugitated for non-
appearance, on the diet being called against Connor,
W. H. Thomson objected to the relevancy of the in-
dictment, on two grojinds, 1st, in respect of the vague-
ness with which the prosecutor described the locus where
the rape was said to have been committed, in so far as
it is stated that it was ' at or near a gate of entrance
' into a park or field upon the lands or farm of South
' Medrox aforesaid, commonly called the Kilnknowe
' Park, situated in the Parish of New Monkland afore-
' said, or at or near some other part of the said road, or
' of the said lands or farm, situated in the parish of New
' Monkland aforesaid, to the prosecutor unknown.' In
detailing the alternative charge of assault, with intent
to commit rape, the words ' or otherwise, place last
' above libelled,' were used ; this implied more than one
8 CASES BEFORE THE HIGH COURT
No. 2. locus had been previously libelled, which was the more
Connor and objectionable, inasmuch as, on looking back, the place
MoSn. last above libelled was the place on said farm ' to the
Glasgow. ' prosecutor unknown.' Either, therefore, the alterna-
^1848^*' *^v® charge was libelled with an undue degree of uncer-
■^ ^^ tainty, or there was more than one place intended to be
Assault, described in the charge of rape, in which case the libel
was deficient in not giving more precise notice to the
pannel.
Farther, the party alleged to have been injured was
described to have been a servant ' of said James M'Lean
' senior, residing with him,' without any farther description
of her. There had not been any James M'Lean previously
mentioned in the indictment, the only M'Lean named as
the occupier of the farm being designated ' William.'
This was too uncertain a description of the party injured,
inasmuch as, the word ' said' being superfluous, the in-
sertion of it was calculated to mislead, and this the more
especially, as .the prisoner being entitled to assume his
innocence of a charge of this nature, he would thereby
be misled as to the nature of the proof necessary to ad-
duce in exculpation. Indeed, if so great a latitude were
allowed, the prosecutor might adduce in support of his
charge any Mary Houston, who was servant to some
James M'Lean, living any where within the kingdom of
Scotland.
Deas, for the prosecution, replied, that the words'
objected to, ' place last above libelled,' were in the com-
mon form used in such charges. In respect to the other
objection, he wished time to consider it, and moved the
Court to postpone the case till next day.
At the next calling, Deas stated that he would not
press this indictment farther ; and on his motion, the
Court deserted the diet against the pannel, pro loco et
tempore.
AND CIRCUIT COURTS OP JUSTICIARY.
NORTH CIRCUIT.
PERTH.
Judges — The Lord Jdstice-Clerk and Lord Wood. oct. 12.
1848.
Her Majesty's Advocate — J. M. Bell A. D.
AGAINST
James Flinn and Margaret M'Donald or Brennan — Broun.
Culpable Homicide — Assadlt with Aggravations. — Circum-
stances, in which the Court directed'"the Jury that, after the pro-
secutor had withdrawn the charge of Culpable Homicide, they were
not entitled to find the pannels guilty of assault, to the danger of
life.
James Flinn and Margaret M'Donald or Brennan, No. 3.
were accused of Culpable Homicide ; as also. Assault, FUnn Mid
aggravated by being to the serious injury of the person, M^nlnaTd.
and to the danger of life : ""p^rthT"
Oct. 12.
1848.
In so far as, upon the 8th day of April 1848, or on one or other
of the days of that mouth, or of March imme&iately preceding, or of Homicide
May immediately following, in or near Guthrie's Close, in or near *"=•
Overgate Street of Dundee, you the said James Flinn and Margaret
M'Donald or Brennan did, both and each, or one or other of you,
wickedly and feloniously, attack and assault William M'Donald, then
or lately before labourer or fish-dealer, residing at or near Hawkhill of
Dundee, and did strike him with your fists on the head or other parts
of his person, and did knock or force him to the ground, and did kick
him on the belly, or other parts of his person ; and you the said Mar-
garet M'Donald or Brennan did strike the said William M'Donald
with an iron tray or server or other instrument to the prosecutor un-
known, one or more blows on the head or other parts of his person ;
and you the said James Flinn did, one or more times press your knees
or limbs forcibly and severely on the back, or on the belly or other
parts of the person of the said William M'Donald ; and you the said
James Flinn and Margaret M'Donald or Brennan did, both and each.
10 CASES BEFORE THE HIGH COURT
No. 3. or one or other of you, otherwise maltreat and abuse the said William
James M'Donald ; by all which, or part thereof, the said-William M'Donald
Flinn and ' •' > r e i.- ve -nA in
Margaret was seriously injured in his person, to the danger ot nis lite, ann lu
M'Donald. consequence thereof died, on or about the night of the 9th, or morning
Perth. " of the 10th day of April foresaid, and was thup culpably bereaved of
^fg-^l^- life by you the said James Flinn and Margaret M'Donald or Brennan,
-rr-, — — — or one or other of you.
Culpable •'
Tc! ^' It appeared from the evidence, that after the scuffle
which was shewn to have taken place amongst the par-
ties, in the course of which it was proved, that the pan-
nel Flinn had thrown the deceased, and fallen upon him
with his knees on the stomach ; and also, that the fe-
male prisoner had dealt him a blow over the head with
an iron tray, — that he had gone to a public house and
partaken rather freely of whisky. The medical wit-
nesses who had examined the body, on cross-examina-
tion admitted, that drinking ardent spirits after receiving
such injuries as those spoken to by the witnesses, would
be calculated to excite inflammation, and occasion death,
even in cases where otherwise no such result might have
followed.
Upon this the Advocate-depute abandoned the charge
of Culpable Homicide, and addressed the jury in support
of the charge of Assault, as laid, with the aggravations.
Broun, for the pannels, contended, that as the public
prosecutor had abandoned the charge of culpable homi-
cide, the aggravations to the charge of assault that it
was to the danger of life, must also be abandoned, in-
asmuch, as the circumstance that death had followed
within twenty-four hours, most clearly shewed either
that the death was the result of the injuries received,
or that it had resulted altogether from the state of intoxi-
cation in which it was shewn the deceased was, after the
time of the alleged injuries.
The Lord Justice-Clerk in summing up to the jury,
said, that, since the charge of culpable homicide had been
given up, so he thought must the aggravation to the
charge of assault, that it was to the danger of life. It
did not seem possible to sustain such an aggravation in
AND CIRCUIT COURTS OF JUSTICIARY. 1 1
a case where death had unquestionably resulted within No. 3.
twenty-four hours after the injuries alleged, after the Fiinn and
public prosecutor had, by abandoning the charge of M-oSd.
culpable homicide, confessed that the death had not been perth.
the result of the outrages charged. In such a case, it ^il'il"^'
must either be culpable homicide, or common assault, "culpabiT
because, where the death followed the injuries so Homicide,
speedily, the principal charge ought to have been in-
sisted in if the death could have been traced to the vio-
lence charged against the pannels ; and if it could not,
then there was equally no evidence in support of the
aggravation. His Lordship added, that the Advocate-
depute had done quite right in withdrawing the principal
charge ; and that in these remarks he was not stating
any general rule, but merely making observations on
the particular evidence in this case, in which the ag-
gravation of danger to life could not consistently be in-
sisted in if the charge of culpable homicide was actually
given up.
The Jury, by a large majority, found the pannels guilty
of assault, to the serious injury of the person.
In respect of which verdict of assize, the pannels were
sentenced to be imprisoned in the prison of Dundee for
four calendar months.
12 CASES BEFORE THE HIGH COURT
Oct. 13. Judge— The Lord Justice-Clerk.
1848. "
John Bruce, Appellant— P. Eraser.
AGAINST
Thomas Duncan and John M'Lean, Respondents— (?. Young.
Appeal— Procedure.— Held that the Sheriff might competently pro-
nounce sentence in a suit, at the instance of the Procurator-fiscal, to
have a vicious dog destroyed, although no record was kept of the
proceedings, and the sentence was pronounced in the absence of the
defender.
No. 4. On the 13th of August 1846, the following Petition
Duncan & and CoHiplaint was presented to the Sheriff of Perth-
^^ shire, by the respondents, as joint procurators-fiscal for
Oct. 13. the public interest, shewing —
1848. ^
Appeal. ( Xhat the petitioners have received information that John Bruce,
' farmer at Rosemount, has in his possession a large dog of a black or
' dark colour, which is vicious and dangerous to the lieges. That the
' said dog has been in the general practice of attacking and biting
' people who happened to be passing by the said farm of Rosemount ;
' and in particular, that the said dog did, upon the evening of Tuesday
' the twenty-third day of June last, or about that time, attack and
' bite, to the effusion of their blood, and dangerous injury of their per-
' sons, Thomas Reid, forester at St Martin's, William Wallace John-
' ston, gardener at ' St Martin's, and James M'Laren, servant to the
' Rev. John Park of St Martin's, and that upon the public road called
' the Den road, and about midway between the farm of St Martin's and
' Rosemount, while the said persons were going home. That the dog
' received no provocation to occasion such attack. That the said John
' Bruce has been frequently desired and required either to chain up
' the said dog, or to destroy it for the safety of the lieges, but he re-
' fuses so to do. That the petitioners, in consequence of the many
' complaints made to them regarding the viciousness of the said dog,
' and the public danger incurred by allowing it to go at large, did, on
AND CIRCUIT COURTS OF JUSTICIAEY. 13
' the twenty-seventli day of June last, by letter addressed to the said No. 4.
' John Bruce, require him to get the dog destroyed, but to this appli- Bruce «
' cation no attention was given. That it is therefore necessary for the M'Lean.
' safety of the public that the said dog be destroyed, under your Lord- „ , —
' ship's authority.' And therefore praying, that it might please his Oct. 1 3.
Lordship ' to grant warrant for citing the said John Bruce to appear ^^^^'
' before you, to answer to this complaint, and on the facts therein Appeal.
' stated being admitted or proved, to grant warrant to officers of court
' to destroy the said dog, and to find the said John Bruce liable in the
' expenses of this application, and consequent procedure.'
Thereafter, on the 17th of August 1846, in obedience
to the deliverance of the Sheriff-substitute on the fore-
going petition and complaint, the appellant appeared in
court, and verbally pleaded not guilty. After which,
without any record, the Sheriff-substitute ordered proof
of the facts alleged in the petition and complaint, and
on the 24th March 1848, decerned against the appel-
lant, in terms of the prayer of the petition. To which
interlocutor the Sheriff adhered on appeal.
Against this decision, the appellant appealed to the
Circuit Court, when,
Feaser argued on his behalf, that the whole pro-
ceedings before the Sheriff were inept, in respect (1.),
if the case was to be regarded as a criminal one, at the
instance of the Procurator-fiscal, then the judgment was
incompetent, it having been pronounced in the absence
of the appellant ; and (2.), if the judgment was to be
regarded as having been pronounced in a civil case,
it was equally void, inasmuch as no record had been
made up and closed therein, and the acts of sederunt
regulating civil causes in Sheriff Courts, had been alto-
gether disregarded.
Young, for the Respondents, answered, — This was a
proceeding sui generis. It was an application to the
Sheriff, as chief magistrate of the county, at the instance
of the Procurator-fiscal, as conservator of the public
safety. The Procurator-fiscal was not in the position of
a party prosecuting a civil claim or vindicating a patri-
14 CASES BEFORE THE HIGH COURT
No. 4. menial risrht, and therefore the Act of Sederunt had no
Bruce «■ , ,
Duncan & apphcation. On the other hand, the personal presence
^ of the appellant during the proceedings was unnecessary,
1848.' there being no conclusion for punishment or censure
Appeal, against him.
The Lord Justice-Clerk pronounced the following
interlocutor : —
' Perth, 13th October 1848. — The Lord Justice-Clerk
' having heard counsel for the parties, affirms the
' judgments of the Sheriff complained of ; dismisses
' the appeal : Finds the respondents entitled to the
' expenses of the appeal, as the same shall be taxed
' by the Clerk, and for which and the dues of extract,
' decerns.'
John Kemp, Writer, Perth, Duncan and M'Lean, Writers, Perth — Agents.
AND CIRCUIT COURTS OP JUSTICIARY. 15
Judqe — The Lord Justice-Clbbk.
Dundee and Union Whale Fishing Company, Dundee, Appellants
— P. Fraser.
RossLYN Mavour and Alexander Paton, Mariners in Dundee,
Respondents — Millar — Ogilvy.
Appeal — Competency — Expenses. — Held (overruling Wilson v.
Cameron, Broun, vol. ii., 284) that an appeal from the Sheriff is
comp.etent to the Circuit Court, before decerniture for the taxed ex-
penses in the original suit.
This was an appeal against the judgment of the Sheriff No. s.
of Forfarshire. ^"^^^L^
Millar, for the Respondents, objected to the compe- r^^c,,
tency of the appeal, inasmuch as, although the Sheriff •°- Mavour.
had pronounced a final interlocutor on the merits, there- ^^''th.
by finding expenses due, and remitting to the auditor i848.'
to tax the same and report, the appeal had been brought Appeal.
before the expenses had been taxed and decerned for.
The Act of Sederunt of 11th July 1839,^ according to the
judicial construction put thereon in numerous cases, is
decisive of the question, ( Wilson and Matheson v. Came-
ron, Inverness, Sept. 20. 1844, Broun, vol. ii. p. 284,
and cases there cited.) Indeed, to adopt any other con-
struction, would tend unduly to multiply appeals, inas-
1 This act, which was passed for regulating forms of process in
Sheriff Courts, declares, § 131, That, ' in civil causes, appeals to the
' next Circuit Court, in terms of the Act 20th Geo. II. chapter 43 ;
' 31st Geo. II. c. 42 ; 54th Geo. III. c. 67, are competent only after
c a final judgment has been pronounced, and the matter of expenses
' has been disposed of, and where the subject-matter in the suit does
' not exceed in value Twenty-five pounds sterling.
16 CASES BEFORE THE HIGH COURT
Dundef & ^^^^ 3,s quGstions might arise on the auditor's report,
Union, which might form a separate ground of appeal, and so
Fishing Co. hang up the case for six months, which questions would
-, ^"^°"''' be heard and determined along with the merits of the
Oat. 13. suit, if the construction hitherto adopted was adhered to.
'^^^' The Lord Justice-Cleek said he was extremely an-
AppeaJ. xious to do nothing which would have the effect of dis-
couraging appeals to the Circuit Court ; and after con-
sulting with Lord Wood, who was presiding in the cri-
minal Court, repelled the objection to the competency of
the appeal, and pronounced the following interlocutor,
after the appeal had been discussed on the merits : —
' Perth, iSth October 1848.— The Lord Justice-Clerk
' having heard counsel for the parties, dismisses the ap-
' peal : Finds the respondents Mavour and Alexander
' Paton entitled to their expenses in this appeal, as the
' same shall be taxed by the Clerk, and for which ex-
' penses, and the dues of extract, decerns.'
For the Appellants, — - Floweedew— For Paton, Shaw, M'Lauchlan & Reid,
Writers, Dundee.— For Maronr, Galloway, Writer, Dundee.
AND CIRCUIT COURTS OP JUSTICIARY. If
HIGH COURT.
Present,
The Lord Justice-Clerk.
Lords Mackenzie and Medwyn.
Her Majesty's Advocate — TAe Lord Advocate Buther/urd. —
Crau/urd A.D.—Deas A.D J. M. Bell A.D.
AGAINST
James Gumming — Logan — A. Grahame.
Henrt Ranken — Moncreiff* — A. Grahame.
John Grant and Robert Hamilton — Logan— Lorimer.
Indictment — Statute — Conspiracy — Sedition — Relevancy. —
Held, 1st, That it is not objectionable in an indictment under the
Act lltb and 12th Vict. c. 12, to libel a previous design as evidenced
by subsequent overt acts. 2d, That it is enough, in charging a con-
spiracy, to state that the pannel had presided over a body ' formed
' for the illegal purposes libelled,' without charging him to have
done so in pursuance of the common intent laid in the major. 3d,
That the statute 11th and 12th Vict. c. 36, does not exclude the
common law, and that it is competent to libel the same species facti
as sedition at common law, as well as a contravention of the statute.
4th, That a conspiracy, to effect an alteration of the Constitution
by force, is only an aggravated form of sedition at common law.
Evidence. — 1st, When it was proposed to shew a witness a pamphlet
said to have been published by an association of which the pannels
were members, — ruled that this was competent without first proving
that the prisoners were present at the meeting where the matter was
discussed, reserving to them the right of shewing they were not
concerned therewith. 2d, Question whether language indicative of a
conspiracy could be proved against a pannel, as having been used by
B
Nov. 7.
1848.
18 OASES BEFORE THE HIGH COURT
him on an occasion not mentioned in the libel. 3d, Held that it
was competent to prove other expressions of a seditious nature, be-
. sides those charged in the libel, in support of the charge of sedition.-
4th, Held that a letter could not be read in support of the charge of
conspiracy, libelled as commencing at a date subsequent to that of
the letter. 5th, Held, that where a letter relating to the alleged
common design had been directed to one of the pannels, and found
in the possession of another, it was competent evidence against both,
although it was not shewn that the writer was a conspirator, or that
the contents were true, or that it was ever seen by the party to
whom it was addressed.
Verdict. — Held, 1st, That it is unnecessary to libel intention in a
charge of sedition ; and 2d, That when the Jury found the pannels
guilty of sedition, in so far as they had used language ' calculated to
' excite popular disaffection, and resistance to lawful authority,' and
explained that they had purposely omitted the word intended, which
was also charged in the minor, that the verdict was good, and sen-
tence might competently follow thereon.
No. 6. James Gumming, shoemaker, residing in Duncan Street,
Gumming, Drummond Place, Edinburgh, was charged on Criminal
John Grant T,„ttp™o .
and Others, ijeliers .
High Court.
Nov. 7. That Albeit, by an Act passed in the eleventh year of Our reign,
^^^^- chapter twelve, entituled ' An Act for the~ better Security of the
Conspiracy ' Crown and Government of the United Kingdom,'' it is by section
& Sedition. •'
^ The 11th Vict. cap. 12, after reciting, that ' by an act of the
Parliament of Great Britain passed in the thirty-sixth year of
the reign of His late Majesty King George the Third, intituled
' An act for the safety and preservation of His Majesty's person and
' Government against treasonable and seditious practices and attempts,'
it was among other things enacted, that if any person or persons
whatsoever, after the day of the passing of that act, during the
natural life of His said Majesty, and until the end of the next session
of Parliament after the demise of the crown, should, within the realm
or without, compass, imagine, invent, devise, or intend death or de-
struction, or any bodily harm tending to death or destruction, maim
or wounding, imprisonment or restraint of the person of His said
Majesty, his heirs or successors, or to deprive or depose him or them
from the style, honour, or kingly name of the imperial crown of this
realm or of any other of His said Majesty's dominions or countries,
or to levy war against His said Majesty, his heirs and successors.
AND CIRCUIT COURTS OF JUSTICIARY. 19
third of the said Act enacted, 'That, if any person whatsoever, after No. 6.
' the passing of this Act, shall, within the United Kingdom or c^^-
' without, compass, imagine, invent, devise, or intend to deprive or de- John Grant
' pose Our Most Gracious Lady the Queen, Her heirs and successors, °'°" Others.
High Court.
Nov. 7.
1848.
' within this realm, in order, by force or constramt, to compel him or ;
' them to change his or their measures or counsels, or in order to put ^°ge^'^*on
' any force or constraint upon or to intimidate or overawe both houses
' or either house of Parliament, or to move or stir any foreigner or
' stranger with force to invade this realm or any other of His said
' Majesty's dominions or countries under the obeisance of His said
' Majesty, his heirs and successors, and such compassings, imaginations,
' inventions, devices, or intentions, or any of them, should express,
' utter, or declare, by publishing any printing or writing, or by any
' overt act or deed, being legally convicted thereof, upon the oaths of
' two lawful and credible witnesses, upon trial, or otherwise convicted
' or attainted by due course of law, then every such person or persons
' so as aforesaid offending should be deemed, declared, and adjudged
' to be a traitor and traitors, and should suffer pains of death, and also
' lose and forfeit as in cases of high treason : And whereas by an act
' of Parliament passed in the fifty-seventh year of the same reign,
' eutituled ' An act to make perpetual certain parts of an act of the
" thirty-sixth year of His present Majesty, for the safety and preser-
" vation of His Majesty's person and Government against treasonable
" and seditious practices and attempts, aud for the safety and preser-
" vation of the person of His Royal Highness the Prince Regent
" against treasonable practices and attempts,' all the herein-before re-
' cited provisions of the said act of the thirty-sixth 'year of His said
' Majesty's reign, which relate to the heirs and successors of his said
' Majesty, the sovereigns of these realms, were made perpetual : And
' whereas doubts are entertained whether the provisions so made per-
' petual were by the last-recited act extended to Ireland : And where -
' as it is expedient to repeal all such of the provisions made perpetual
' by the last-recited act as do not relate to offences against the person
' of the sovereign, and to enact other provisions instead thereof ap -
' plicable to all parts of the United Kingdom, and to extend to Ireland
' such of the provisions of the said acts as are not hereby repealed :'
— enacts, Sect. 1, ' That from and after the passing of this act the pro-
' visions of the said act of the thirty -sixth year of the reign of Kin"
' George the Third, made perpetual by the said act of the fifty-seventh
' year of the same reign, and all the provisions of the last-mentioned
' act in relation thereto, save such of the same respectively as relate
' to the compassing, imagining, inventing, devising, or intending death
' or destruction, or any bodily harm tending to death or destruction,
& Sedition.
20 CASES BEFORE THE HIGH COURT
No. 6. ' from the style, honour, or royal name of the Imperial Crown of
James . jj^g United Kingdom, or of any other of Her Majesty's dominions
JohnS't ' and countries, or to levy war against Her Majesty, Her heirs, or
andOthera. t successors, within any part of the United Kingdom, in order, by
High Court.
Nov. 7. ■ ' "^
^°^^' ' maim or wounding, imprisonment or restraint of the person of the
Conspiracy . jjgjrg and successors of His said Majesty King George the Third, and
the expressing, uttering, or declaring of such compassings, imagma-
tious, inventions, devices, or intentions, or any of them, shall be and
the same are hereby repealed.'— Sect. 2, ' That such of the said recited
provisons made perpetual by the said act of the fifty-seventh year of
the reign of King George the Third as are not hereby repealed, shall ex-
tend to and be in force in that part of the United Kingdom called Ire-
land.'—Sect. 3, ' That if any person whatsoever, after the passing of this
act shall, within the United Kingdom or without, compass, imagine,
invent, devise, or intend to deprive or depose our most gracious lady
the Queen, her heirs or successors, from the style, honour, or royal
name of the imperial crown of the United Kingdom, or of any other
of Her Majesty's dominions and countries, or to levy war against
Her Majesty, her heirs or successors, within any part of the United
Kingdom, in order by force or constraint to compel her or them to
change her or their measures or counsels, or in order to put any
force or constraint upon or in order to intimidate or overawe both
houses or either house of Parliament, or to move or stir any
foreigner or stranger with force to invade the United Kingdom or
any other Her Majesty's dominions or countries under the obesiance
of Her Majesty, her heirs or successors, and such compassings, ima-
ginations, inventions, devices, or intentions, or any of them, shall
express, utter, or declare, by publishing any printing or writing, or
by open and advised speaking, or by any overt act or deed, every
person so oflfending shall be guilty of felony, and being convicted
thereof shall be liable, at the discretion of the court, to be trans-
ported beyond the seas for the term of his or her natural life, or for
any term not less than seven years, or to be imprisoned for any term
not exceeding two years, with or without hard labour, as the court
shall direct.' — Sect. 4, ' That no person shall be prosecuted for any
felony by virtue of this act in respect of such compassings, imagina-
tions, inventions, devices, or intentions as aforesaid, in so far as the
same are expressed, uttered, or declared by open and advised speak-
ing only, unless information of such compassings, imaginations,' in-
ventions, devices, and intentions, and of the words by which the
same were expressed, uttered, or declared^ shall be given upon oath
to one or more Justice or Justices of the Peace, or to any Sheriff or
Steward, or Sheriff Substitute or Steward Substitute, in Scotland,
AND CIRCUIT COURTS OF JUSTICIARY. 21
force or constraint, to compel Her or them to change Her or their No, 6.
measures or counselSj or in order to pat any force or constraint npon, James
or in order to intimidate or overawe, both Houses or either House of jgjm (jj-ant
Parliament, or to move or stir any foreigner or stranger with force and Others.
to invade the United Kingdom, or any other Her Majesty's domi- HighCourt.
Nov. 7.
1848.
within six davs after such words shall have been spoken, and unless Conspiracy
■' & Sedition,
a warrant for the apprehension of the person by whom such words
shall have been spoken shall be issued within ten days next after
such information shall have been given as aforesaid, and unless such
warrant shall be issued within two years next after the passing of
this act ; and that no person shall be convicted of any such corn-
passings, imaginations, inventions, devices, or intentions as aforesaid,
in so far as the same are expressed, uttered, or declared by open or
advised speaking as aforesaid, except upon his own confession in
open court, or unless the words so spoken shall be proved by two
credible witnesses.' — Sect. 5, ' That it shall be lawful, in any in-
dictment for any felony u6der this act, to charge against the offender
any number of the matters, acts, or deeds by which such compass-
ings, imaginations, inventions, devices, or intentions as aforesaid, or
any of them, shall have been expressed, uttered, or declared.' —
Sect. 7, ' That if the facts or matters alleged in an indictment for any
felony under this act shall amount in law to treason, such indictment
shall not by reason thereof be deemed void, erroneous, or defective ;
and if the facts or matters proved on the trial of any person indicted
for any felony nnder this act shall amount in law to treason, such
person shall not by reason thereof be entitled to be acquitted of such
felony; but no person tried for such felony shall be afterwards pro-
secuted for treason upon the same facts.' — Sect. 9, ' That no person
committed for trial in Scotland for any offence under this act shall
be entitled to insist on liberation on bail, unless with consent of the
public prosecutor, or by warrant of the High Court or Circuit Court
of Justiciary, in such and the like manner and to the same effect as
is provided by an act passed in the session of Parliament holden in
the fifth and sixth years of the reign of His Majesty King George
the Fourth, intituled ' An act to provide that persons accused of
forgery in Scotland shall not be entitled to bail, unless in certain
cases / but the trial of any person so committed, and whether libe-
rated on bail or not, shall in all cases be proceeded with and brought
to a conclusion under the like certification and conditions as if inti-
mation to fix a diet for trial had been made to the public prosecutor
in terms of an act passed in the Scottish Parliament in the year one
thousand seven hundred and one, intituled ' An act for preventing
wrongous imprisonment, and against undue delays in trials."
22 CASES BEFORE THE HIGH COURT
No. 6. I niona, or countries under the obeisance of Her Majesty, Her beirs
Gumming, ' and successors, and such compassings, imaginations, inventions, de-
JohnGrant « yices or intentionaj or any of them, shall express, utter, and declare,
^° ' by publishing any printing or writing, or by open and advised speak-
High Cpurt. I ijjg^ Qj. \yy a^jjy Qvert act or deed, every person so offending shall be
1848.' ' guilty of felony, and, being convicted thereof, shall be liable, at the
^ : ' discretion of the court, to be transported beyond the seas for the
& Sedition. ' term of his or her natural life, or for any term not less than seven
' years, or to be imprisoned for any 4erm not exceeding two years,
' with or without hard labour, as the Court shall direct :' And albeit,
by the laws of this and of every other well-governed realm, the
wickedly and feloniously Conspiring to Effect an Alteration of the
Laws and Constitution of the Realm by force and violence, or by
arroed resistance to lawful authority ; As also Sedition, are crimes of
an heinous nature, and severely punishable : yet tbue it is and of
VEBITT, that the said James Camming is guilty of the statutory crime
and felony above libelled, and of the crime of conspiracy at common
law above libelled, and of the crime of sedition above libelled, or of one
or more of the said crimes, actor, or art and part : In so far as, in the
months of April, May, June, and July, 1848, or on one or other of
them, the particular time being to the prosecutor unknown, the said
James Cumming did, wickedly and feloniously, compass, imagine, in-
vent, devise, or intend to levy war against Us, within that part of the
United Kingdom called Scotland, in order by force or constraint to
compel Us to change Our measures or counsels, or in order to put
force and constraint upon, or in order to intimidate or overawe, both
Houses or either House of Parliament j and such compassing, imagina-
tion, invention, device, or intention, or one or more of them, the said
James Cumming did, on or about the 28th day of June 1848, or on
one or other of the days of that month, or of May immediately pre-
ceding, or of July immediately following, and within or near a room
or hall situated in or near Infirmary Street, in or near Edinburgh,
commonly called the Trades' Hall, wickedly and feloniously, express,
utter, and declare, by circulating or distributing, and thereby publish-
ing, or causing to be circulated or distributed, and thereby published,
a printed or written placard in the following or similar terms : — >
' NATIONAL GUARD.
' A Nation to be free, requires but Arms and a knowledge of
' their use.'
' A Public Meeting of the National Guard will be held in the
' Trades' Hall, Infirmary Street, on Wednesday, June 28, 1848, For
' the transaction of important business. Doors open at Eio-ht Chair
' to be taken at Half-past Eight. The various Clubs are respectfully
AND CIRCUIT COURTS OF JUSTICIARY. 23
« invited to attend. An opportunity will be given to those desirous of No. 6.
' joining. James
■' ° Gumming,
" It is the duty of all men to have arms." — Fohtescue. John Grant
" It is the right and duty of all Freemen to have Arms of De-
fence and Peace."— Bracton. "^^No^^*'
" I request you to take care that the people be well Armed and 1848.
in readiness upon all occasions." — Queen Elizabeth. Conspiracy
" To attack the lowest among the people is to attack the whole * Sedition.
people." — De Lolme.
" He is a fool who knows not that Swords were given to men
that none might be Slaves but such as know not how to use
them." — Algernon Sidney.
' One Penny will be charged at the Door to defray expenses.
' Alex. Elder, Printer, 243 High Street.'
and by then and there openly reading the said placard, or causing the
same to be openly read in the presence and hearing of a great number
of persons, all or many of them calling themselves Chartists, then and
there convened and assembled as members of a body calling itself a
National Guard, or for the formation or enrolment of such National
Guard ; and the said James Gumming did, then and there, his said
compassing, imagination, invention, device, or intention, or one or
more of them, wickedly and feloniously, farther express, utter, and
declare, by taking the chair and presiding over the proceedings of the
said meeting of persons convened and assembled as aforesaid, being
members of, or met for the formation or enrolment of the said National
Guard ; and by then and there, or at some other time within the pe-
riod above libelled, and at some other place to the prosecutor unknown,
joining the said National Guard, and enrolling himself as a member,
or otherwise becoming a member thereof ; the said body calling itself a
National Guard being, and by him known to be, an illegal and dis-
loyal body, formed or enrolled for the illegal and disloyal purposes of
subverting by force and violence the laws and government of the
realm, and of compelling by force and violence an alteration of the
laws and constitution of the realm, and of procuring and using guns
and pikes or other arms for the levying of war against Us within the
realm, as aforesaid, in order by force or constraint to compel Us to
change Our measures or counsels, and in order to put force or con-
straint upon, and in order to intimidate or overawe, both Houses or
either House of Parliament, or for one or more of the said illegal and
disloyal purposes ; and it was within the said room or hall, and by all,
or one or more, of the said persons convened and assembled as afore-
said, then and there, openly proposed or resolved in presence and
hearing of the said James Gumming, and with his sanction as chair-
24 CASES BEFORE THE HIGH COURT
No. 6. man, that the members of the said body callbg itself the National
Gumming ^"^'*^ should provide themselves with guns and pikes or other arms,
John Grant and it was intended, and by him known to be intended, to use the said
and Others. ^^^^ ^^ j ^jj^gg ^j. ^^-^ei arms, for the illegal and disloyal purposes
High Court, aforesaid, or one or more of them; and an individual then and there
ma. present, whose name is to the prosecutor unknown, did, then and there,
;; : and in presence and hearing of the said James Gumming, and with his
Conspiracy '^ ° ■, ■, i j^ e • i. i
& Sedition, sanction as chairman, propose and undertake to furnish or supply
guns, or guns and bayonets, to those ^who desired them ; and the said
James Gumming did, as chairman aforesaid, express or indicate his
approval and recommendation of such proposal and undertaking, and
did state from the chair of the said meeting, that pikes would be sup-
plied to those who preferred them ; and the said James Gamming did,
on or about the 22d day of July 1848, or on one or other of the days
of that month, and within or near the house in Duncan Street, Drum-
mond Place, Edinburgh, then and now or lately occupied by him, or
at some other time and place to the prosecutor unknown, his said com-
passing, imagination, invention, device, or intention, or one or more of
them, wickedly and feloniously, farther express, utter, and declare, by
writing, subscribing, and addressing, to ' M' James Smith 27 Bmns-
' wick Street Glasgow,' a letter in the following or similar terms : —
' Edinburgh, July 22, 1848,
' 14 Duncan S'. Drummond Place.
' Dear Smith,
' I am in receipt of yours of the 13*, and take the earliest oppor-
' tunity of communicating the information desired. Although I might
' have informed you generally as to the state and spirit abroad imme-
' diately, I deferred writing until I could procure correct accounts
' from the members and officers of the various clubs and political
' bodies intending to arm. There are a great many clubs, in fact they
' are springing up nightly, there is a sort of club mania. The follow-
' ing are the names and numbers of the clubs which are increasing
' weekly: Mitchell Club, 56. Burn's Club, 25. Muir Club, 200.
' Baird and Hardie Club, 20. Gerald Club, 26. O'Connor Club, 12.
' Washington Club, 25. Emmet Club, I have not yet ascertained the
' number. Besides the Clubs there is the National Guard which
' numbers 500, making a total of 8C4 men besides the Emmet Club.
' The National Guard have given an order for 30 muskets with bay-
' onets, but a great many have provided themselves with arms ; those
' ordered are for those who pay in weekly contributions for that pnr-
' pose. Some of the Clubs have purchased a few muskets at £l each
' which have been shewn at the meetings. I do not know of more
' than 8 as yet ; but there is an arms fund in most of the Clubs for
' those who are not able to purchase them at once. When the Guard
AND CIRCUIT COURTS OF JUSTICIARY. 25
are supplfed with the arms ordered, I may say safely there will be No. 6.
a 100 armed. Aa to the feeling which pervades the town, it is de- Cy^^f^e
cidedly warlike at the present time ; the general topic of conversa- John Grant
tion is arming, street fighting, &c. The Irish papers, the Felon par- and Others.
ticularly, is read with avidity, and hailed with rapture and enthusi- High Court,
asm. Never since I took any part in the movement, which is now iglg
nearly 20 years, was there such a strong feeling of resistance to the
' government. In 39 I was connected a defensive means associa- &"se^'ftion.
' tion, but the spirit evaporated before a single gun was subscribed
' for. It is very different now. The desire to procure and possess
' arms is gaing strength every day ; whether they would fight or not
' it is difficult to answer. I know that an Edinburgh mob generally
' fly if they are attacked ; but having arms and some idea how to make
' use of them inspire confidence. I shall be glad to hear how matters
' stand in Liverpool and Glasgow as soon as convenient. In the
' meantime,
' I am, Dear Sir,
' Your's sincerely,
' J. Cn.MMING.'
' Mr James Smith,
' Glasgow.'
and on the day, or soon after the day above libelled, as the date of the
said letter, putting the said letter addressed as aforesaid, or causing the
same to be put, into the Post-Office, Edinburgh, or into one or other of
the Receiving-Offices of the Post-Office, Edinburgh, intending the said
letter to be transmitted to, and to be received by, James Smith, now
or lately residing in or near Rotten Row Street, Glasgow, and now or
lately a porter or servant in the employment of Messrs Campbell and
Cruden, now or lately commission-agents in or near Brunswick Street
of Glasgow, or to be transmitted to, and received by, some other per-
son of the name of James Smith to the prosecutor unknown ; and the
said letter having been transmitted through the Post-Office to Glasgow,
was, on or about the 24th day of July 1848, delivered by mistake to
James Smyth, writer, or writer's clerk, son of, and now or lately re-
siding with, William Smyth, writer in Glasgow, and now or lately
carrying on business at or near No. 29 Brunswick Place or Brunswick
Street, Glasgow, and now or lately residing in or near Abbotsford
Place, in or near Glasgow, instead of being delivered to the person for
whom it was by the said James Gumming intended ; and the said
James Gumming did write, subscribe, address, and transmit, through
the Post-Office as aforesaid, the said letter, with intent thereby to
serve or promote the said illegal and disloyal purposes above libelled,
or one or more of them, of himself and his associates in the said illegal
and disloyal body calling itself a National Guard: Likeas, in the
26 CASES BEFORE THE HIGH COURT
No. 6. months of April, May, Jane, and July, 1848, above libelled, or one or
Camming, ™°''® "^ *'i«™» ^^^ particular time being to the prosecutor unknown,
John Grant and within or near the room or hall situated in or near Carrubber's
and Others, qj^^^^ gj^j^ g^j.^^^,^ Edinburgh, commonly called Painters' Hall, for-
High Court, merly occupied as a place of meeting by the Edinburgh Branch of the
1848.' National Chartist Association, and within or near the premises situ-
r — ated in or near the High Street of Edinburgh, then and now or lately
& Sedition occupied as the office of the North British Express newspaper, and
within or near the room or hall abpve libelled in or near Infirmary
Street aforesaid, and within the house in Duncan Street, Drummond
Place, Edinburgh, then and now or lately occupied by him, or in one
or more of the said places, or at some other time within the period
above libelled, and at some other place, to the prosecutor unknown, the
said James Gumming did, wickedly and feloniously, combine and con-
spire with Henry Ranken, now or lately residing in or near Bishop's
Close, High Street of Edinburgh ; Robert Hamilton, now or lately re-
siding in or near Gilmore Street, Simon Square, Edinburgh ; John
Grant, printer, now or lately residing in or near Munro's Close, Ca-
nongate of Edinburgh ; Archibald Walker, now or lately residing in
or near Bread Street, Edinburgh ; Peter Duncan, a mason, now or
lately working in or near Dalkeith, in the county of Edinburgh, and
now or lately residing in or near Edinburgh ; the said James Smith,
now or lately residing in or near Rotten Row Street, Glasgow, or with
one or more of them, and with other persons to the prosecutor un-
known, calling themselves Chartists, to efiFect an alteration of the laws
and constitution of the realm, and particularly of the constitution of
the Commons' House of Parliament, the qualification for the franchise
required by law in the election of members of Parliament, the duration
of Parliaments, and other such changes in the laws and constitution of
the realm; desired and aimed at by him and his associates, and gene-
rally by the persons calling themselves Chartists ; and the said altera-
tions of the laws and constitution of the realm he and his said associ-
ates did combine and conspire to effect, not peaceably, lawfully, and
loyally, but by force and violence, or by armed resistance to lawful
authority ; and the said James Gumming did, on or about the 28th day
day of June 1848, and within or near the room or hall above libelled,
situated in or near Infirmary Street aforesaid, wickedly, feloniously,
and seditiously, attend and take the chair, and preside over the pro-
ceedings of the meeting above libelled of a great number of persons
convened and assembled as above libelled, as members of or for the
formation and enrolment of the said body calling itself a National
Guard, the same being, and by him known to be, an illegal and dis-
loyal body, formed or enrolled for the illegal and disloyal purposes
above libelled, or one or more of them ; and he did, then and there
circulate or distribute, or cause to be circulated or distributed and did
AND CIRCUIT COURTS OF JUSTICIARY. 27
openly read, or cause to be read, in the presence and hearing of the No. 6.
said meeting, the printed or written placard above libelled ; and he did, q^^^^„
then and there, while in the chair of said meeting, hear, permit, and John Grant
sanction, a proposal or resolutiou to the effect, that the members of ana Others.
the Said National Guard should provide ^ themselves with guns and High Court,
pikes or other arms, which were intended, and by him known to be 1848."
intended, to be used for the illegal and disloyal purposes above libelled, t; :
or one or more of them ; and he did, then and there, hear, permit, and & Sedition,
sanction, a proposal and undertaking to furnish or supply guns, or
guns and bayonets, to -those who desired them ; and the said James
Gumming, in the presence and hearing of the said meeting, and in an-
swer to a remark or question by some person to the prosecutor un-
known, then and there present, whether those who wished pikes would
be supplied with pikes, did, then and thelire, openly and seditiously,
state or declare from^the chair, that pikes would be supplied to those
who preferred them, or he did, then and there, use words of the same
meaning and effect : And farther, the said James Gumming did, on
or about the 22d day of July 1848, or on one or other of the days of
that month, and within or near the house in Duncan Street above
libelled, occupied by him, or at some other time and place to the pro-
secutor unknown, wickedly, feloniously, and seditiously, write, sub-
scribe, address, and transmit, through the Post-Office as above libelled,
the letter above libelled, intending the same to be transmitted to, and
received by, James Smith, porter or servant aforesaid, or some other
person of the name of James Smith to the prosecutor unknown ; and
the said letter was transmitted through the Post-OfiSce, and delivered
by mistake as aforesaid, to the said James Smyth, writer, or writer's
clerk aforesaid.
John Grant, Printer, Henry Ranken, Editor, or
Joint Editor of the North British Express Newspaper,
and Robert Hamilton, Tailor, were charged :
That Albeit, by the laws of this and of every other well-gove,rned
realm, the wickedly and feloniously Conspiring to Effect an Alteration
of the Laws and Gonstitution of the Realm, by force and violence, or
by armed resistance to lawful authority ; as also. Sedition, are crimes
of an heinous nature, and severely punishable : Yet true it is and
OP VERITY, that you the said John Grant, Henry Ranken, and Robert
Hamilton are, all and each, or one or more of you, guilty of the crimes
above libelled, or of one or other of them, actors or actor, or art and
part : In so far as, in the months of March, April, May, June, and
July, 1848i or one or more of them, the particular date being to the
prosecutor unknown, and within or near a room or hall in or near
Carrubber's close, High street of Edinburgh, commonly called ' Pain-
28 CASES BEFORE THE HIGH COURT
No. 6. ter's Hall,' formerly occupied as a place of meeting by the Edinburgh
James Branch of the National Chartist Association, and within or near the
J^hn Grant premises in or near the High street of Edinburgh, now or lately occu-
and Others. pied.by the publishers of the North British Express newspaper, and
High Court, within or near the room or hall commonly called the Trades' Hall, m
Nov. 7. or near Infirmary street, Edinburgh, and within or near a room or hall
'"*"• in or near Adam square, Edinburgh, and on or near the Calton Hill,
Conspiracy Edinburgh, or at one or more of the said places, or at some other place
& aedition. ° ' '■ ii, -j t i,
in or near Edinburgh to the prosecutor unknown, you the said John
Grant, Henry Ranken, and Eobert Hamilton did, all and each, or one
or more of you, wickedly and feloniously, combine or conspire with
each other, and with Archibald "Walker, now or lately residing in or
near Bread street of Edinburgh; Peter Duncan, a mason, now or
lately working at or near Dalkeith, in the county of Edinburgh, now
or lately residing in or near Edinburgh ; James Gumming, shoemaker,
now or lately residing in or near Duncan street, Drummond place of
Edinburgh; or with one or more of them, and with other persons to
the prosecutor unknown, calling themselves Chartists, to effect an
alteration of the laws and constitution of the realm, and particularly
of the constitution of the Commons' House of Parliament, the quali-
fication for the franchise required by law in the election of members of
Parliament, the duration of Parliaments, and other such changes in the
laws andj^constitution of the realm, desired and aimed at by you and
your associates, and generally by the persons calling themselves Char-
tists ; and the said alterations of the laws and constitution of the
realm you and your said associates did combine and conspire to effect,
not peaceably, lawfully, and loyally, but by force and violence, or
by armed resistance to lawful authority ; and you the said John
Grant, Henry Kanken, and Robert Hamilton did, all and each, or
one or more of you, on or about the 25th day of April 1848, or ou
one or other of the days of tha;t Inonth, or of March immediately pre-
ceding, or of May immediately following, and within or near the pre-
mises aforesaid, occupied by the publishers of the North British
Express, or at one or other of the places above libelled ; and again on
or about the 28th day of April 1848, or on one or other of the days of
that month, or of March immediately preceding, or of May immediately
following, and within or near the room or hall situated in Adam
Square aforesaid, or at one or other of the places above libelled,
wickedly, feloniously, and seditiously, resolve and agree to form, or
cause and procure to be formed, a body, to be called a National
Guard, and to be provided with arms, to be used for the illegal and
seditious purpose of effecting, by force and violence, or by armed re-
sistance to lawful authority, the said alterations of the laws and con-
stitution of the realm, or one or more of them ; and you did, all and
each, or one or more of you, become a member of the said body calling
AND CIRCUIT COURTS OP JUSTICIARY. 29
itself the National Guard, knowing the same to be an illegal body, fJo. 6.
formed for the said illegal and seditious purposes : Further, you the Ja™es
said John Grant, Henry Ranken, and Robert Hamilton did, on or John (Jran't
about the 12th day of June 1848, or on one or other of the days of that andOthers^
month, or of May immediately preceding, or of July immediately fol- High Court,
lowing, attend a public meeting of a great number of persons convened ■ jo^'o
and assembled on Bruntsfield Links, near Edinburgh, by or in conse ;
quence of a printed , placard, headed 'Great Demonstration of the ^g^jtion.
' Trades of Edinburgh and Leith to refute the statement of Lord John
' Russell, that the people were not wanting any reform, and to ex-
' press their determination not to rest satisfied until the principles of
' the people's Charter become the Law of the Land.' And you, the
said John Grant did, then and there, take the chair of, and preside
over, the proceedings of the said meeting, and you did, then and there,
advise and exhort the persons there convened and assembled as afore-
said to organise themselves into Clubs and Sections for the more effec-
tual prosecution of the objects of the Chartist body : And you the
said Henry Ranken did, then and there, address the said meeting con-
vened and assembled as aforesaid, and you did, then and there, openly
and seditiously, move a resolution, in the following or similar terms : —
' We the inhabitants of Edinburgh and Leith, in public meeting as-
' sembled, are satisfied of the lamentable ignorance, or wicked, mali-
' cious falsehood of Lord John Russell, in stating that the people
' of this country do not want reform of any sort whatever ; and we
' therefore declare, that it is our intention not to rest satisfied, nor to
' cease agitating, until the people's Charter is the law of the land,
' being fully convinced that justice can neither be obtained nor pre-
' served unless the people are put in possession of their rights, which
' are clearly laid down in that document : We are farther resolved to
' exert ourselves to the utmost of our power to promulgate our prin-
' ciples in every quarter of the land, and thereby create a feeling that
' will ultimately compel our oppressors to relinquish their grasp, which
' we are satisfied will be ere long ; for we are determined that while
' there is misery for the inmates of the cottage, there shall be no peace
' for the inmates of the hall ;' and in support of the said resolution,
you the said Henry Ranken did, then and there, openly and seditiously,
and in presence of the said meeting, say, that ' it was a well-known
' fact that the police, the special constables, and the military, were
' tainted with the principles of the Chartists ; but although these men
' were true, they would not forget the advance of enlightenment
' among the working classes, that the science of chemistry had entered
' the workshop, and that working men could provide themselves with
' as deadly weapons as Warner's long range ; and if it was to be a
' struggle for life and death, if it was to be destruction, then you hoped
' and trusted that the working men would only be true to themselves,
30 CASES BEFORE THE HIGH COURT
No. 6. ' and only abstain from all acts of aggression until they were roused
CumnTinff ' V ^^^ oppression of their oppressors, and when they began the work,
John Grant ' may they do it .well;' and you the said Henry Ranken did, then
and Others. ^^^^ there, urge and advise the persons convened and assembled as
High Court- aforesaid at the said meeting, to organise themselves into clubs and
184*8.' sections for the more efltectual prosecution of the objects of the Chartist
~ — : — ~ body; and you did, further, openly and seditiously, and in presence of
& Sedition, the said meeting, say, ' If the leaders of the people are to be incarce-
f rated, if the people are to suffer this tamely, if those who have an
« interest in keeping you down feel that you will quietly submit, then
« they are secure ; but if the working men look to themselves, and if
• they look to those who place themselves in the front of the fray, if
' they look to those who are willing to brave every danger, then I say
i the working men ought to consider what means should be taken to
« protect these men : Let the property of the country be hostages in
' the hands of the people for the safety of the leaders of the people ;'
and again you did further say, ' It has been said that the French are
' inventive, but that the British have this faculty, that upon all the
' French inventions they improve. Should the authorities drive the
' people into a revolution, then I hope the people will improve upon
' the French invention of a republic ;' or you did, on the occasion
above libelled, use words of the import and effect above set forth : And
you the said Robert Hamilton did, time and place last above libelled, ad-
dress the said meeting, and you did, then and there, openly and sedi-
tiously, and in the presence of the said meeting, urge aud advise the
persons then and there convened ,and assembled as aforesaid, ' to orga-
' nise themselves into clubs and sections, and to provide themselves
' with guns and bayonets,' in order to carry into effect the said objects
of yourself and your associates; and you did then and there say,
' For the love of God prepare yourselves with guns and bayonets, as
' the day is not far distant when you may require them ;' or you did,
then and there, use words of the import and effect above set forth : And
yon the said John Grant did, then and there, as Chairman of the said
meeting, sanction the said resolution, and did put the same to the
meeting and did declare it to be passed or adopted ; And you did, as
Chairman aforesaid, hear, permit, and sanction the seditious speeches
above libelled of the said Henry Ranken and Robert Hamilton, and
you did not call them to order, or stop or attempt to stop them, or ex-
press any dissent from, or disapprobation of, the said speeches : And
your conduct and speech as aforesaid in the Chair of the said meeting
were seditious, and were intended and calculated to excite popular
disaffection, commotion, and violence, and resistance to lawful autho-
rity : FuBTHBR, on or about the 19th day of June 1848, or on one or
other of the days of that month, or of May immediately preceding, or
of July immediately following, and within or near Waterloo Rooms,
AND CIRCUIT COURTS OP JUSTICIARY. 31
near the Regent Bridge, Edinburgh, you the said Henry Ranken did, No. 6.
openly and seditiously, and in the presence of a large number of per- q„^^^„„
sons, all or many of them calling themselves Chartists, then and there John Grant
assembled, urge and recommend the meeting to ' organise into clubs Others.
' and sections,' for the more effectual prosecution of the objects of the High Court.
Chartist body, and ' to provide themselves with arms in case they i848.'
might require to use them ;' or you did, then and there, use words of :
the import and effect above set forth : Further, on or about the 24th & Sedition,
day of July 1848, or on one or other of the day« of that month, or of
June immediately preceding, or of August immediately following, and
on or near the Calton Hill, Edinburgh, you the said Henry Ranken
and Robert Hamilton did, both and each, or one or other of you, attend
a public meeting of persons then and there convened and assembled ;
and you the said Henry Ranken did, then and there, address the said
meeting, and you did, then and there, openly and seditiously, and in
presence of the said meeting, say, in reference to the illegal and cri-
minal proceedings of certain evil-disposed persons in Ireland, that you
considered that ' the people of Ireland were justified in their determi-
' nation to resist to the death the oligarchy who ruled them,' and you
did express your hope or prayer that ' the God of battles would smile
' on the oppressed, and enable them to improve the victory they were
' sure to win ;' and you the said Henry Ranken did further, then and
there, say, that ' If the power of Great Britain was brought to bear
' against the people of Ireland, then the people of Scotland must
' endeavour to distract the attention of the Government ;' and you
did, then and there, recommend the organisation of clubs and sections,
for the more effectual prosecution of the objects of the Chartist body,
and you did state that certain clubs had been already formed in Edin-
burgh, for the promotion of the objects desired by the Chartist body,
and you did name certain of these clubs, as the ' Washington Club,'
the ' Mitchell Club,' the ' Faugh-a-Balloch Club,' the ' Muir Club,'
the ' Wallace Club,' the ' William Tell Club,' and others ; and you
did urge the meeting to join one or other of the said clubs, or you did,
then and there, use language of the import and effect above set forth :
And you the said Robert Hamilton did, time and place last above
libelled, address the said meeting, and you did, then and there, openly
. and seditiously, and in presence of the said meeting, say, that the Irish
people would require help, — that pikes were easily made, — and that
the young and spirited men of Scotland should go to Ireland and help
the Irish people ; and that at one time you would have been satisfied
with the Charter as the law of the land, but that now you would accept
of nothing else than a republic, and that they would soon obtain one,
or you did, then and there, use words of the import and effect above
set forth ; and the whole or part of the language above set forth as
32 CASES BEFORE THE HIGH COURT
No. 6. used by you the said John Orant, Henry Ranken, and Robert Hamil-
Cumming ^°^ respectively, aa above libelled, was intended and calculated to
John Grant excite popular disaffection, commotion, and violence, and resistance to
"^i^^- lawful authority.
High Court-
Nov. 7.
^"''^- On the diet against Gumming being called, Looan ob-
& SeSn. jected to the relevancy, on two grounds, 1st, In respect
to the statutory offence, that^ no overt acts were suf-
ficiently set forth. The object of the late statute was
twofold, — 1st, To subject a party, in respect of certain
acts, to a charge of felony only, instead of treason ; and,
2d, To constitute advised speaking sufiicient to complete
the offence. The acts charged against the pannel were
high treason under 36th Geo. III. c. 7, which was re-
pealed by the late statute. Treason could only be proved
by overt acts (Hume, vol. i. p. 514), and there was a ne-
cessity in all cases of treason to libel the overt acts
specifically in connection with the alleged treasonable
intent. That had not been done in the case before the
Court. It might be conceded, for a-rgument's sake, that
sufficient had been stated for constituting an offence under
the statute, if properly laid ; but the prosecutor, after
alleging a substantive antecedent design, as far back as
the month of April, proceeded, in libelling the overt acts,
at once to 28th June, without alleging that this was done
in pursuance of the intent before mentioned.
The Lord Justice-Clerk quoted the indictment in
Thistlewood's case, to show that such strictness as was
contended for on behalf of the pannel was unknowTi in
English practice.
Logan departed fi-om the objection, which was ac-
cordingly repelled.
He then objected to the first charge as laid at common
law for Conspiracy. The mode adopted was too vague.
It ought to have been alleged in the minor that the va-
rious acts set forth in support of the charge, had been
done or said in pursuance of the common design charged
in the major.
AND CIRCUIT COURTS OP JUSTICIARY. 33
The Lord Justice-Clerk — It would have been better ^°^^
had the mode you now suggest been adopted ; but on the Camming,
i , . . ,. .... 1 1 , ,1 1 1 JohnGrant
seventh page of this indictment, it is stated that the body and others.
calling itself the National Guard, and over a meeting of High court,
which the pannel is said to have presided, ' was known ^sTs!'
• by him to be an illegal and disloyal body, formed and conspiracy
' enrolled for the illegal and disloyal purposes above libel- ^ s^'^'*'""-
' led, or one or more of them.' Surely that is sufficient.
The objection was repelled.
He then objected that the common law charges were
incompetent. But for the late statute, the acts charged
against the pannel would have amounted to high treason ;
and that statute having reduced the offence to one of
felony, it must now be tried exclusively as a contraven-
tion of the act.
The Court thought this 'objection so important, that, *
on the suggestion of the Lord Advocate, with the con-
currence of the prisoner's Counsel, they delayed the case
for two days, in order that the case might, together with
those of Grant, Ranken, and Hamilton, be heard before
the whole Bench. The Lord Justice-Clerk in the
meantime directed the attention of the Crown to the
mode in which it was stated that Gumming had incurred
guilt, by wickedly and feloniously expressing, uttering,
and declaring by ' writing, subscribing, and addressing' to
' Mr James Smith, 27 Brunswick Street, Glasgow, a letter,'
&c. He wished to know whether this was intended to
be a charge of publishing under the late statute, or whe-
ther it was only intended as an overt act of siedition. If
intended to support a charge under the statute, could
such charge be siipported without averring publication
expressly ? Was the letter merely intended as a narra-
tive of the compassings charged, or was it intended
to be proved as an overt act ? He also inquired whether
the Crown considered the charge of conspiracy, as laid at
common law, to be anything different from sedition. If
it was not different, the Crown could have no interest to
34 CASES BEFORE THE HIGH COURT
No. 6. press it. If different, doubts might arise as to its com-
Cumming, petencj, inasmuch as if such compassmgs and imagmmgs
and Other! as thosc charged against the pannels should be sufficiently
HighCour^. proved by overt acts, the charge might amount to high
^lail' treason, notwithstanding the recent statute. There was
Conspiracy HO precedent for any indictment in such a form for
& Sedition, ggjji^jojj merely. In all previous indictments it was
merely alleged that the acts done had been calculated
and intended to alienate the minds of the subjects or
produce disaffection, &c. ; but the present charge went a
great deal further, in charging a compassing to effect an
alteration of the laws and constitution of the realm by
force and violence. The question became very important
in considering the application of Sir William Rae's Act,
whereby the punishment of transportation was abolished
in cases of sedition, inasmuch as, if this was held to be
something different, the Crown might ask for a sentence
of transportation ?
The following Minute was then given in by the pannel :
MINUTE FOK JAMES CtTMMING.
The pannel, and the counsel for the pannel, request the Court to
delay the diet for this trial till Thursday, the 9th of November 1848,
inclusive, and consent that the intervening period shall not be reckoned
within the days of running letters of intimation under the Act 1701,
chap. 6. (Signed) James Cumming.
A. S. Logan.
Akch. Gbahame.
AND CIRCUIT COURTS OF JUSTICIARY. 35
Present,
The Lord JusticIe-Clbrk, ig^g *
Lords Mackenzie, Moncreipf, Medwyn, Cookburn, and Wood.
The diet having been again called against the ,pannel No. 6.
Gumming, and the other pannels having also surrendered, Cumming,
Logan argued, that it was incompetent to try the and'others.
offences charged against the pannels, except under the High Court.
recent statute. It was important to observe what were ^jg^'s!'
the charges made ■ against them. It was alleged that conspiracy
they had conspired to effect an alteration Of the law and ^ ^^'^•''°"-
constitution by force and violence, to intimidate and
overawe Parliament ; that they had assisted to combine,
and abetted an illegal force, called the National Guard ;
the substance of the whole being, that the object was to
effect a change of the government by force. The minor
was the same, with one exception, on both of the com-
mon law and statutory charges, the only difference being
that under the common law it was not charged that
Cumming had joined the National Guard. That was
not material to the present discussion, as the other of-
fences alleged against the pannels were relevant to have
constituted treason under the common law of Scotland,
under the 36th Geo. III. ; and were also relevant to con-
stitute felony under the late act. Erskine, B. 4, tit. 4,
sect. 20 ; Mackenzie on Criminal Law, JHigh Treason,
tit. 6; Act 1st Pari. Car. II., chap. 5, vol, ii., p. 138,
small edition. These were also identical with the treason-
able offence in the law of England, under the statute of
Edward III. Lu'ders on High Treason, p. 137 ; State
Trials, vol. vii., p. 961. The meaning of compassing is
there defined as being ' to attempt war.'
Lo'rd Justice-Clerk. — Attempting was doubtless
treason in Scotland. Is compassing, conspiring, and at-
tempting in any way different from compassing or con-
spiring?
36 CASES BEFORE THE HIGH COURT
No. 6. Logan. — The difference was, that before the Union
Cumming, compassing and conspiring would in Scotland have been
and others, high treason, but in England could only have-been proved
High Court, by overt act, done in pursuance thereof. Under the 1st
ms.' section, 7th Anne, c. 21, the jurisdiction of the Court of
Conspiracy Justiciary was ousted, and the tribunal of the Grand Jury
& Sedition. ^^ established, and the right of peremptory challenge
given ; but it could not be pretended that, because of
that statute, compassing ceased to be per se a treason in
the law of Scotland. It was incompetent to try it as
evidenced by overt acts, as an offence of sedition at com-
mon law ; Hume, vol. i., 553. There was no instance
between 1709 and 1795 in which it had been held that
species facti, such as here set forth, had been punishable
otherwise than as treason. This would meet the objec-
tion which might be stated from the 6th section of 36th
Geo. III.J, inasmuch as before that statute passed, it must
have been considered that the law of treason, introduced
by the 7th of Anne ,had merged all subordinate charges.
LoED Justice-Clerk. — Do you state that this would
not have been a seditious offence 'in England before the
passing of 36th Geo. Ill ? — And referred to the case of
Walker.
Logan. — In the case of Walker, which led to the
passing of that act, the words used were similar to those
in the present indictment, State Trials, vol. xxiii. p. 1062.
This, however, was no proof that the common law of
Scotland would have regarded it in tbe same light, as that
was altogether dissimilar to the common law of England.
Further, it was necessary that each offence should be
tried under its appropriate nomen juris ; if it was treason,
it was nothing else. The statute 36th Geo. III. did not
alter the character of the offence, it only created that
which was before merely evidence of treason into a sub-
stantive treason ; East's Pleas of the Crown, pp. 62, 63 ;
case of Hardie, p. 278. The second section of the late
statute had no such reservation as was contained in the 6th
section of 6th Geo. III., and that statute being repealed
AND CIRCUIT COURTS OF JUSTICIARY. 37
the reservation therein contained was repealed also. No. 6
But, farther, the statute of Victoria contains provisions cumming,
for the beneiit of parties accused under it. Under the fnS Oriie™'
4th section information must have been given within six Hi^h Court"'
days after the offence was committed, and a warrant ^j'jj^'/"
issued within ten days thereafter, otherwise the party conspiracy
could iiot be tried under the act ; besides which, the ^ Sediticn.
party was entitled-to the benefit of criminal letters, as
though intimation had been given under the Act 1701.
This was not an auxiliary act, but a direct and positive
declaration of the legislature, as to what the offence
should be considered ; how and when it shotild be tried,
and to what privileges the pannels would be entitled.
It was not, however, in the present case necessary to
push the argument so far. Under the reservation of
36th Geo. III. the prosecutor would not have been
entitled to try both under the statute and the common
law. He must have made his election : and it was equally
incompetent to try in both ways under this statute.
The Lord Advocate and Mr Craufurd. — ^The case
must be considered under three heads : —
1. The common law of Scotland.
2. As affected by the English Treason Acts ; and,.
3. Under the present statute.
1. The charge of conspiring, as here laid, woul& have
been an offence at common law. The common law
reaches all criminal acts falling within the range of pre-
cedent or known principle. They were quite willing, for
the sake of argument, but to that extent only, to assume
that, in Scotland as in England, all felonies merged in
treason. This, however, was in truth an intermediate
crime, not amounting to the statutory offence on the one
hand, but yet properly distinguishable from sedition on
the other. The compassing, which was now no longer
treason, was the act of an individual mind, and was com-
plete so soon as the intent was formed. To constitute
the crime of conspiracy there must be a common intent,
a combination by a plurality of persons, and it must,
38 CASES BEFORE THE HIGH COURT
No. 6. therefore, be considered as diiFerent, both from the com-
cumming, passlng which, under the late act, was made felony, and
andoaers! from Sedition as an individual act.
Highconrt! The LoED Justice-Clebk.— Do you maintain that
^°48!' under a charge of sedition, it would be incompetent to
conapiracy libel a Combining for seditious purposes ?
&.Sedition. Ceaufukd. — It is not necessary to push the argument
that length. The charge here is not so laid, but yet it is
well laid, and if the combination is proved as stated, that
is more than mere personal sedition. There never yet
was a period when such conspiracy would not fer *ehave
been a crime at common law.
2. The Act 36th Geo. III. made no difference. Under
it the common law was specially reserved ; but suppose
the common law to have been excluded under that act,
and suppose that the act had not been made perpetual,
but had expired, as was originally contemplated, within
a year, it could not then be contended that the common
law, which had been in abeyance during that period,
would not have revived. Nothing can exclude the com-
mon law but special statute, or identity between the
crime charged and an existing treason. If the act charged
be no longer treason, then, even admitting the doctrine
of merging, that would not help the argument of the
panneH inasmuch as it must be a living treason, not a
dead one, which could have that effect-
3. The recent statute repeals the 36th Geo. III., and,
by such repeal, restored the common law, as to all corn-
passings not made substantive treasons under the statute
of Her present Majesty. There is, therefore, no longer
need for any reservation of the common law, which
reaches this crime, and all such crimes by its own native
vigour. The common law was never excluded, except
by positive words ; Hume, vol. ii. p. 37. This has been
acted upon in many cases undet Lord Ellenborough's
Act; case ^i Alexander Mackenzie, High Court, Dec. 31.
1843, Broun, vol. i., 495, The result of adopting, the
view urged on the other side would be^ that between the
AND CIRCUIT COURTS 0F JUSTICIARY. 39
act of Anne and the act of Geo. III. such conspiracy, as j^^^^
then charged against the pannel, would have been no Cummmg,
offence at all, inasmuch as the pannel says that the. and others,
statute of Anne prevented it being indicted at common High Court.
law, and yet he admits that it was not treason under the i848.
statute of Edward III. There could be no doubt that it conspiracy
might have been so tried as well before as after the 36th
Geo. III. How then could it be contendeid, that there
was anything in the present statute to prevent^the Public
Prosecutor froin libelling the offence at common law,
-which, as he had shewn, had been always in force, when
the crime was not treason, and when no special statute
excluded it ?
The Lord Justice-Clerk. — Is it not a strong" thing
to say that you are entitled to disregard all the privi-
leges given to the pannel under the 4th and 9th sections,
as to the time within which the information must be
given — the warrant for apprehension issued — and the
party brought to trial ?
Ceaufurd. — If I am right that the crime of conspi-
racy is not identical with the statutory offence, then the
pannel can suffer no injury. More especially, as we
do not seek to enforce against him, in respect of this
charge, the high penalties imposed by the statute.
Lord Justice-Clerk. — Do you say you do not intend
to prove the compassing charged, as a contravention of
the statute by means of conspiracy ?
Lord Wood. — Under the 3d section, the compassings,
imaginations, &c. which are declared to be felony under
the act, are said to be completed if the party shall ex-
press, utter, or declare the same by publishing any print-
ing or writing, or by open advised speaking, or by any
overt act or deed ; do you contend that th6 privileges
given in the 4th section, as contradistinguished from that
given in the 9th, is confined to cases where the party is
alleged to have contravened the act by dpen and advised
speaking only? Is not the fair construction of the act,
that as every mode of committing the offence is declared
40 CASES BEFORE THE HIGH COURT
No. 6. to be a felony, and to be punished with the same penalty,
James '' ^ i i i n
Curaraing,. that the protection in the 4th section should equally ex-
and others, tend to all cascs, more especially as this is the plain con-
High Court, struction of the privilege given in the 9th section.
1848.' The Lord Advocate. — ^There are two answers ; the
Conspiracy fi^st, that if I do not prosecute under the statute, I am
& Sedition, jjq^ bound to give the privileges conferred by the statute ;
and, secondly, that on the plain construction of the sta-
tute, these privileges are only given where it is alleged
that the statute has been contravened by ' open and ad-
vised speaking' only. And there was good reason for
this, inasmuch as a prisoner might not be enabled to
make a proper defence, in respect of words uttered at a
public meeting, if the charge had been allowed to remain
over his head until the circumstances under which they
were uttered were forgot by parties who might other-
wise have shewn them to have been innocently used.
MoNCREiFF replied — The points are few, but impor-
tant. Our position is, that the charge of conspiring to
effect an alteration of the laws and constitution of the
realm, by reason of the statute, merges in the felony, just
as before the late enactment it would have merged in trea-
son, except for the reservation under the 36th Geo. III.
which, whatever the object might otherwise have been,
is equivalent to a statutory declaration that, but for the
reservation, the common law would have been ousted.
By the 18th section of the Treaty of Union, recited in the
statute of Anne, it was provided, ' That the laws which
' concern public right, policy and civil government, maybe
' made the same throughout the whole united kingdom.'
And by the subsequent statute, it was enacted, ' That such
' crimes and offences which are high treason or mispri-
' sion of high treason within England, shall be construed,
' adjudged and taken to be high treason and misprision of
' "high treason within Scotland ; and that from henceforth,
* no crimes or offences shall be high treason or mispri-
' sion of high treason within Scotland, but those that are
' high treason or misprision of high treason in England.'
AND CIRCUIT COURTS OF JUSTICIARY. 41
The statute overruled the common law, in so far as it No. 6.
James
was inconsistent therewith. — Lord Holt, in Sir John Cumming,
Friend's case. State Trials, vol. x. p. 599. and others.
There was no instance of a party having been indicted High Court.
for conspiracy to levy war as a separate offence before ]848.'
the 36th Geo. III. ; it must therefore have been con- conspiracy
sidered prior to that statute, if proved by overt acts, as
treason, or, if it could not be so proved, as sedition only.
Notwithstanding the rebellions, Hume makes no men-
tion of any common law charges of this kind, and it was
feir to assume that nothing of the kind was ever con-
sidered competent at that time.
The doctrine of merger goes much farther than seems
to have been supposed. In the case of Mackinlay, the
point was not decided as applicable to the law of Scot-
land, although on a fair import of the opinions delivered,
it must be assumed that the doctrine was allowed in
cases of treason. It extends to cases, however, other
than those of treason, the principle being that where
particular species facti are, by means of a statute, raised
into a higher offence, it is incompetent to prove them
under a lower charge. The Act of Victoria was a British
Statute : it had used English terms unknown to the law
of Scotland, and we must go to English law for an in-
terpretation of their meaning, By that law conspiracy
would be misdemeanour only, and even conceding the ar-
gument on the other side that the common law had re-
vived in consequence of the repeal of the 36th Geo. III.,
the only effect would be that, inasmuch as under the
present act it was declared to be a felony, and as it was an
undoubted principle of English law, that if an act
amounted to felony, it could not be charged as a mis-
demeanour, the common law charges were incompetent
here. Mr Justice BuUer's direction to the Jury in
Isaac's ease, Russell on Crimes, vol. ii. p. 550.
The question was, was the statute exclusive to any
extent — ^if so, it was exclusive to every extent. There
were provisions in favour of the pannels, and the Lord
42 CASES BEFORE THE HIGH COURT
No. 6. Advocate could not neutralize the enactments of the
Cummfng, Legislature in their favour, under pretence that he did
fnd o?w not seek to have a high penalty imposed upon them,
High Court- as the pannel might prefer those protections which
^848?' might enable him to prove his innocence, or exempt
Conspiracy him from! trial altogether, rather than be charged with
& Sedition. ^ subordinate offence infferring a minor punishment, —
in respect of which, those privileges were not accorded
to him.
LoED Justice-Gleek. — It would have been very de-
sirable to have had more time to deliberate, before giv-
ing judgment in this very important case ; but, as the
pannel is entitled to all the privileges of the act 1701,
under the 9th section of the late statute, the Court
cannot delay giving their decision upon the points which
have been urged in his favour.
I feel the greatest difficulty in supporting the relevancy
of the charges objected to, and but &r the great differ-
ence of my opinion from the rest of the Court, I should
have expressed myself more decidedly against the l-ele-
vancy of the two charges laid at common law.
I think the Lord Advocate made a ^eat mistake as
to the purport of the argument on behalf of the pannel,
and this mistake consistesd, in my opinion, in not observ-
ing that the minor of all the charges were essentially
the same. It is true, that at first the argument which
has now been submitted to the Court, was confined to
the charge of sedition only, but on my suggestion, it has
to-day been extended to both the charges at common
law.
I wish to guard myself against agreeing in the doctrine
which, it has been said, has been involved in this argu-
ment, that the offences here charged were not cogniz-
able by the common law before the 36th of Geo. III.,
I have no doubt before the passing of that act they
were illegal. That statute made them treason, but in
a crinlinal charge, the nature of the facts alleged against
the prisoner is alone important. No doubt compass-
AND CIECUIT COURTS OF JDSTICIARY. 43
ing to levy war against the Queen was made treason No. e.
by 36th Geo. III., as made perpetual in the subsequent Cumming,
year ; but this shews that, at common law, the rule was and others.
as I have stated it, namely, that intention must be High Court.
shewn by overt acts in all criminal offences, and that ^°^'il'
according to the criminality of the overt acts proved, conspiracy
the law would infer a criminal intention. The act ^ Sedition.
of Geo. III. contains a clause which expressly enables
the prosecutor to try at common law for the overt acts,
which were always illegal, as well as for the intention
then first made a crime under the statute. This, is easily
understood. It was natural, under the circumstances, to
find such a reservation, inasmuch as on the one hand it
would have been extremely difficult to have proved in-
tention without overt acts, so, on the other, it might ap-
pear on the evidence, that the only intention the law
could ascribe to the prisoner was a treasonable one,
whereby an indictment for a less offence might have
been rendered abortive. It is however conceded, that
no such reservation exists in the late statute, nor could
it be expected, for as the intentions dealt with by the
statute are now no longer substantive treasons, the rea-
son for such reservation no longer exists.
The late statute is entitled, ' an act for the better
' security of the Crown and Government of the United
' Kingdom,' and I think that the safe rule is to con^
sider it as the whole code of law, applicable to the
offences of which it treats. The general declaration of
the statute of Union, the nature of the Union itself, and
the whole scope and object of legislation since that period,
shew that such an act, defining the criminality of politi-
cal offences, containing provisions as to the mode of pro-
secution, must be taken as a legislative declaration of
what shall be the full and only remedy at both ends of
the island. This statute, after a recital of previous
statutes, and after repealing the same, in so far as they
relate to compassing, proceeds, in the third section, to
declare that such compassing shall be felony. I can-
44 CASES BEFORE THE HIGH COURT
No. 6. not separate these two provisions, more especially as
Cummb^g, this section is identical, with the single difference of add-
fndOftCTs! ing the words,' ' on her or royal name,' with the words
High Court, employed in the 36th of Geo. III. The statute then
^848^" prescribes how the offences contemplated shall be
Conspiracy punishcd, aM restricts the powers of the prosecutor as
& Sedition. iQ ^]je tjme within which he is to prefer his instance, and
thereafter restricts the competency of trial within the
period allowed to persons after intimation has been given
under the act 1701.
In the face of such provisions, tending so materially
to the benefit of the pannel, I cannot bring myself to
believe, that when the legislature enacted this statute, it
was ever contemplated that it was competent to the
Public Prosecutor to evade all these advantages, by pro-
ceeding as for a different offence at common law.
If I could, looking at the whole scope of this indict-
ment, find the charge of conspiracy or sedition different
in substance or matter of charge from the alleged
statutory offence, my difficulties would not arise ; but
surely a charge of compassing to levy war against the
Queen would be supported by proof of a conspiracy so
to do. There never was such a conspiracy, however
abortive, without a compassing. The same acts which
would shew conspiracy, if they proved anything, would
also establish the compassing. In the first charge it is
stated that the pannel was ' convened as member,' &c.
of the alleged illegal body, associated for the illegal
purposes therein set forth. Now, what does that charge
import ? It has not been disputed, that, with the ex-
ception, not the variance, that a joining of the national
guard is not charged in the minor under the common
law charge, the charges are otherwise identical. It is
manifest that one minor would have done for both. I
have the greatest diflBculty, then, in holding that any
different offence can be ascribed in the major. If it was
so, I must tell the Jury, when I come to sum up, that
although they shall say that the parties are innocent of
AND CIRCUIT COURTS OF JUSTICIARY. 45
the facts charged against them under the statute, they No. e.
may yet be guilty of the same facts under the charge Cumming,
at common law. To my mind such a state of things and other",
is impossible. It is plainly no difference that others High Court.
were with him (the pannel), inasmuch as he is alleged ^j°8''48^'
to have acted in concert with others in the contravention conspiracy
of the statute ; and perhaps the worst acts set forth * Sedition.
against him, in respect thereof, are his approval and
adoption of the illegal conduct of others with whom he
was associated.
A point has been raised during the discussion, on
which I am anxious to have the assistance of the Court,
namely, that the conspiracy here set forth is not sedition.
To that doctrine 1 entirely demur. I think it sedition
of the worst kind, but still sedition. I have never for
one moment thought, since the passing of Sir William
Rae's act, that transportation is still competent for acts
like those charged in the present indictment. Here the
Public Prosecutor ought to have charged ' sedition,
'especially when committed by compassing,' &c. In
1793, under the general charge of sedition, the pannels
had sentence, after proof, for seditious conspiring ; but
should the jury return a verdict of not guilty of sedition,
but guilty of conspiracy, if we pronounce our interlocu-
tor sustaining the relevancy of both charges, we must
■ hold this to be a good and consistent verdict. I should
like, for my assistance in directing the jury, to hear your
Lordships' sentiments on this point.
It is for these reasons that I am for sustaining the
objections which have been made to the relevancy of the
present indictment. In so doing, I wish it to be under-
stood, that I by no means go on any general notion that
the intervention of a statute abrogates the common law
in every case. I go upon the peculiarities of this statute
itself, the object for which it was framed, and the cir-
cumstances under which it passed ; and giving due re-
gard to these, I am of opinion that the Legislature has
thereby definitively declared, that wherever the acts
46 CASES BEFORE THE HIGH COURT
N^^6^. charged against a pannel, in fair construction of law,
Gumming, amount to a contravention of the statute, the only com-
and oth^. petent proceedings are those prescribed by the statute,
High Court, with all the privileges it gives to the parties accused.
m8^" Lord Mackenzie. — There are two charges objected
Conspiracy to, couspiracy aud sedition, both charges at common
& Sedition, i^^ n jg jjQ^. gg^jjj ^jjg^t tjjgge a,re not crimes at common
law themselves. But it is said that they are excluded by
the statute of Victoria, as containing matter that is in
the statutory charge. Now, I think it does contain such
matter. But does that warrant the exclusion of the com-
mon law charges ? It is said to do so. Why ? Because,
it comes in place of 36th Geo. III., which would have
excluded it. Now, to this I see two answers : —
First, the act 36th of Geo. III. did not exclude the
common law : it had a clause expressly reserving it.
Secondly, if the act of George Third did exclude the
common law, yet the mention of it in the act of Victoria, as
coming in place of that of George Third, did not mean
that it was to keep up this effect of that statute. It re-
pealed, in the proper enacting clause, the act of George the
Third, and without any qualification. It therefore took
away the treasons of the act of George Third, and substi-
tuted a felony. Now, supposing that the treasons of the
statute of George the Third excluded the common law,
why should this exclusion remain, when they were taken '
away, and a statutory felony substituted, felony having no
such quality of exclusion as treason has ? The one is
taken away with its qualities; the other substituted
with its qualities. If the accessory qualities of treason
had been continued, it would have greatly defeated the
purposes of the act, one of which was to facilitate the
trial of these things. I therefore set aside that expres-
sion. Secondly, but it is further said, that the statute of
Victoria in itself has provisions inferring the exclusion of
the common law. I am not satisfied with that argument.
The act Victoria is an act which imposes severe pains
on certain acts, which, at common law, were, as sedition.
AND CIRCUIT COURTS OF JUSTrc<ARY. 47
punishable only by two years imprisonment at most. No. 6.
. 11 Tit • n James
This statute makes them liable to transportation for Gumming,
life. It also brings in accessories after the fact, not liable aadothera.
at common law, and takes away the right of bail from HighComrt.
the accused. On the other hand, it gives certain privi- ^gla^'
leges to those prosecuted under it. The chief of these, conspiracy
which relates to the charge of advised speaking, is of value, ^ Sedition.
and there are some other privileges of less moment. But
I cannot see why these may not be given to persons pro-
secuted under the statute, without inferring that the
common Jaw is excluded in prosecutions of all the acts
of crime stated in the statute. I think the statute free
from any absurdity, in the view that the common law was
open, as before, with its lighter pains, and less severe
procedure ; but that if the statute is insisted in, the privi-
leges thereby given must be granted. I cannot therefore
supply the place of a clause of exclusion in the statute.
And, on the whole, I feel bound to repel the objections.
Lord Moncreiff. — I could have wished for more
time. This indictment contains three charges — one is
for contravention of the statute, founded on the third
section.; That is a high and penal statute, and there is
no objection to the charge founded thereon. But the
indictment goes on to state second and third charges.
The second charge I think different in some respects
from the first. The question we have to decide is,
whether this second charge is relevant as the law stands.
No one doubts, that, apart from the statute, it would
have been good. It is admitted that the species facti set
forth constituted a crime before the Union. By that
act, no doubt, the law of Scotland, so far as respects
treasonable offences, was overruled. The 36th Geo. III.
makes acts similar to those now charged a substantive
treason, and contains a special clause, reserving the com-
petency of a common law charge, thereby preventing any
merger. That statute is now repealed," and with it the
reservation also. But it is important, in considering the
questions which have been raised, to remember, that
48 CASES BEFORE THE HIGH COURT
No. 6. when they were treason, the common law was preserved,
James ■' ' - j • •
Gumming, In the rccent statute there are substituted provisions.
and Others. But there WRs HO necessitj for any reservation of the
High Court, common law, inasmuch as there was no treason which
1848. " was to have the effects of creating a merger. I never
Conspiracy heard that because a statute applies, the common law is
thereby necessarily ousted. The act of Victoria is a highly
penal one. The common law charge does not lead to the
same inference as the statutory one, and I think the second
charge different from the first. Conspiring is not neces-
sarily the same thing with compassing and imagining.
I think the law contemplates a special case, and, inas-
much as this libel contains no statement of open and ad-
vised speaking, I think the protections therein given
cannot legally be claimed by the pannels as of right.
Lord Medwyn. — The indictment contains three
charges ; the objection is to the second and third. I
agree with Lord Moncreiff that the charges are somewhat
difierent. There may be compassing without conspiracy.
There may also be conspiracy without sedition, though
in this case I think it sedition of an aggravated kind ;
the question is. Can the common law be excluded ? I
do not think the unplication from the statute is sufficiently
strong to have that effect. It is, no doubt, now a common
law offence. By 36th George Third, the common law
right is preserved. By the present act, the repeal of
36th George Third was effected, as there was no longer
any treason into which the sedition could merge. It has
been said that the statute is the whole code of law ap-
plicable to the offence. The clause by advised speaking,
although somewhat difficult to separate from the rest of
the statute, still does not appear to me sufficient to ex-
clude the common law on a charge like the present, when
that is not charged. It may be proper, where the sta-
tute is founded on, to give .the protection it aflFords, but
that, to my mind, is not enough to exclude a common
law charge like the present.
Lord Cockburn.— There are two questions for our
AND CIRCUIT COURTS OP JUSTICIARY. 49
decision, — the one is, whether treason absorbs all subor- No. e.
James
dinate charges ; conceding that to be so, it has no appli- Cumming,
cation to the present case, inasmuch as this is not said and other" .
to be treason. The other is on 36th George Third, as High court.
construed in pari materia with the recent statute. There ^{'sis.'
is no question that a conspiracy like this is a crime. I conspiracy
cannot doubt this. The point for determination is, has * ^®'i''"'"-
the common law been taken away by the late statute, so
that the only competent punishment must be under the
statute, and under the privileges given to the pannel
therein, so that he has a right to insist on being tried
under the statute, and within the statutory period. Now,
there is here no express abrogation of the common law.
It is said to be abolished by implication. It must, how-
ever, be an unavoidable and necessary implication, to
have such an effect, and I cannot see whence this arises.
Nothing is more common than alternatively charging a
9ontravention of a statute along with a common law
charge, and if one minor will serve several majors, the
prosecutor is entitled so to frame his indictment. Even
if the charges were identical, I should not think exclu^
sion of the common law necessarily followed ; but, inas-
much as these facts are not entirely the same, and the
charges are not the same, I do not think the latter
made a crime under the statute {reads statute). There
must, under the statute, be a levying of war, which is
not said here. There is not, therefore, any necessary
implication to exclude the common law, and as I can
guess the intention from words only, I do not think they
have so expressed themselves as to justify us in reject-
ing this charge. In answer to the question of privilege,
it is sufficient to say that he will be exempted from
the pains of the statute if found guilty of the common
law charge only.
Lord Wood. — I feel great difficulty in giving an
opinion. There are three charges. The one statutory,
one conspiracy, which I think the same as sedition, and
a third sedition. I think there may be many charges
50 CASES BEFORE THE HIGH COURT
No. 6. of thoise acts set forth so drawn as not to infer a con-
cummlng, travention of the statute. I think the charges in sub-
fndo?hTs! stance is the same, notwithstanding the variation in
High Court. Haajor. I have no doubt, therefore, that it is a rele-
^°848^' vant case under the statute. If I am asked to hold
Conspiracy" *^^* *^^ chargcs couspiracy and sedition are to be sus-
& Sedition, tained because they are different, I should say the ob-
jection would be good, because I conceive them to be
substantially one with the statutory offence. But the
question is, can you have both? Up to 36th Geo. III.
these acts were indictable by common law, then they
were created into treason, and the less offence merged,
but the common law was preserved even by that statute.
These could not otherwise have been prosecuted at
common law, on account of the merger. But the sta-
tute preserved the common law. Then came the present
statute. If the 36th Geo. III. had merely expired the
common law would have revived ; and the same conse-
quence follows from its repeat They are now no longer
treason, but felony under the recent statute, and, but for
other and special considerations, I would have had no
difficulty in saying they might still be prosecuted as at
common law, when the reservation was no longer neces-
sary, in consequence of the repeal of the statute. But
the difficulty is in respect of the special provision in the
recent enactment, that it is to enact other penalties in
lieu of treason, and which at first sight seems to constitute
it the only code of law on the subject. But I incline
to hold that the only meaning of this is to say they are
not to be treason but felony. I am not sure that this is
enough, by way of inference, to abrogate the common
law ; although we are pressed with the fourth section,
containing so many and valuable protections for the
benefit of the pannel.
But I think with Lord Mackenzie that the protection
is given only to the case of prosecution for open and
advised speaking, now made a felony under the statute.
But if you proceed under common law offence, I do not
AND CIRCUIT COURTS OP JUSTICIARY. 51
think that the inference is sufficient to exclude us from No. 6.
sustaining the relevancy in that form, although, no doubt, cumming,
the effect is to deprive the accused of those protections, fna oaeS!
On these grounds I concur with the majority of the Hieh Court.
Court. Xil-
Conspiracy
& Sedition.
Present,
Nov, 13.
The Lord Justice-Clerk, '**'•
Lords MoNCRteipp and Medwyn.
During the trial of the pannels Grant, Ranken, and
Hamilton, Peter Anderson, one of the witnesses, for the
Crown, deponed, — That, at a meeting of the Edinburgh
Chartist Association, a letter was received from a person
named M'Kay, applying for aid to publish a pamphlet,
a draft of which was enclosed. On a printed pamphlet
being shewn to him, for the purpose of identification, it
was objected on behalf of the pannels, that before this
could be done, the Crown must prove that the prisoners
were present on the occasion referred to.
The Court held, that as the object was to prove pub-
lication of a pamphlet, under the sanction of an associa-
tion, of which the prisoners had been shewn to be mem-
bers, the evidence could not be objected to at that stage
of the proceedings. It would be open to the prisoners
to shew that it had no application as against them, by
proving that they were not concerned in it.
John Bikings, another witness, was asked whether he
had heard Hamilton advocate the use of arms at the
meeting held on the Calton Hill, whereupon
Logan, for the pannel, objected that this evidence was
incompetent, the special occasion when the words were
said to have been uttered not having been libelled.
There was no analogy between the latitude allowed to a
52 Cases before the high court
1^0.6. prisoner in conducting his defence, and the strictness
and others, required to be observed by the Crown. To support an
High Court, indictment, the prosecutor was bound to prove particular
, ^ms'.^' facts, and that they took place on the occasions specified.
ConsEiracy The objcct of scrviug the indictment before-hand, and
& Sedition, ^j^g rcquisitious of criminal pleading, were all intended
to guard the pannel against surprise on the trial. Here
the general statement was, that the pannels had unlaw-
fully conspired, and in support of that allegation, parti-
cular species facti were set forth. The prosecutor, not
content with proving what he had alleged, sought to esta-
blish words used on an occasion of which he had given no
warning.
Craufubd said, it was proposed to lead this evidence,
not with reference to a particular charge of sedition by
spoken words, but to support the general charge of con-
spiracy. It was competent to prove that the prisoner
used any words within the period libelled, indicating his
knowledge of the nature of the institution, its intention,
and objects. It would be relevant to prove that these
words were addressed to an individual, and it can be no
less relevant to prove them when uttered at a public
meeting. He was also entitled, he maintained, to anti-
cipate a remark which might be made in defence, that
the prisoner did. not know the objects for which the in-
stitution was formed.
MoNCEEiFF answered, there were certain public meet-
ings specifically libelled, at which seditious words were
alleged to have been uttered. The pannels were en-
titled to hold that the occasions and words set forth in
the indictment, were those alone on which the prosecutor
intended to rely. It might lead to the greatest injustice
if it was allowed that other meetings and other words
than those libelled might be proved. It was incompe-
tent to prove intention of conspiracy, without giving
notice of the occasion in respect of which the proof was
offered.
AND CIRCUIT COURTS OF JUSTICIARY. 53
No.fi.
John Grant
The question was not farther pressed. and others,
The Court, however, stated that it must not be con- High Court.
... ,. , 1 11 , . . Nov. 13,
sidered as a ruhng by them, that language intimating i848,
an intention of conspiracy could not be proved, though Conspiracy
the specific occasion on which it was used was not stated
in the libel.
James Brownlee, a sergeant of police, having deponed
to having been present at the meeting at Bruntsfield
Links, at which Ranken spoke and moved the first re-
solution, was asked whether he had advised the people
to get arms, in order to procure the charter ; whereupon,
MoNCREiFF objected, that when an indictment for se-
dition libelled particular expressions in proof of the
crime, it was incompetent to prove any general state-
ment not included in the libel.
Craufurd argued that the expressions in the libel
formed a distinct charge. It was not sought to adduce
this evidence to prove any other act of sedition than
those set forth. It was, however, a proper and compe-
tent proceeding that evidence of other expressions in
the same speech should be laid before the jury, in sup-
port of the charge of sedition, or deduced from the par-
ticular expressions mentioned in the indictment.
The Coiirt ruled that the evidence was admissable.
It was proposed to ask Andrew Oliver Smith, clerk
in the County Police Office, to read a printed placard.
No. 3 of Process, purporting to be headed ' National
' Guard,' and intimating a meeting of the National
Guard on 28th June 1848 ; whereupon it was objected
by the counsel for the pannels, that this was not evidence
against any of the prisoners, until it had been previously
shewn that they were in some way connected with the
National Guard.
The Lord Justice-Cleek. — You may be able to dis-
connect yourselves from the National Guard, but, inas-
much as it is proved that the subject of a National
Guard was discussed at the meeting of the Chartist As-
sociation,, on the 25th and 28th of April, at both of
54 CASES BEFORE THE HIGH COURT
1*0.6. which Ranken and Hamilton were present, and inas-
and others, much as it is clearly shewn that they were connected
High Court, with the Association on the 28th of June, it is clearly
^il'ilf' competent that the placard should be read as evidence.
Conspiracy agalust them.
& Sedition. Thereafter it was proposed to read a letter, bearing to.
be dated, ' Glasgow, April' 30. 1845,' and subscribed
' James Smith, Sub. Sec'
Logan objected to the document being read. It
could only be produced with a view to make out con-
spiracy, but, inasmuch as the conspiracy libelled was not
alleged to extend farther back than March 1S48, it was
clearly incompetent to adduce evidence of what took
place three years before in support of the charge.
The Court held that the letter could not be read.
It wa? proposed to read a letter, No. 6, bearing to be
dated ' Edinburgh, 2 Causewayside, Thursday morning,
' 11th May 1848,' and to be subscribed 'John Ferguson,
' Archibald Walker.' It appeared that the letter was
put into the Post Office directed to Ranken, and that it
contained a request that it should be communicated to
Gumming afterwards, and that it was found in the hands
of Gumming open.
MoNCRiEFF, for Ranken, objected, that this letter could
not be read, inasmuch as it was not shown that it had
ever come into Ranken's hands.
The LoED Jtjstice-Clerk — If it did go to Gumming
by mistake, and never reached the party to whom it was
directed, it would be competent for you to prove the fact ;
but as this letter was put into the Post-office directed to
Ranken, the Gourt cannot presume that there was a mis-
carriage iu the Post Office, more especially as the letter
itself bears that it was to be communicated to Gumming,
in whose hands it was found.
MoNCRiEFF — It was uccessary to prove Ranken's
knowledge of the letter. The writer was not accused as
a co-conspirator, and, therefore, without farther evidence,
it was impossible to allow it to be read as evidence of a
AND CIRCUIT COURTS OF JUSTICIARY. 55
conspiracy in which Ranken was said to be involved, al- j^j^^"'^^:^^^^
though the writer was not. Besides which, the letter and others.
was clearly private : and it could not be evidence that a High Court.
11. .1 M • 1 1 Nov. 13.
party had written a private letter, until it was shewn that i848.
the prisoner had seen it. Put the case that the letter Conspiracy
had contained a disclosure of some nefarious design, al-
together unconnected with the alleged Chartist conspi-
racy, that clearly would not be evidence. Erskine, in
the case of Hardy, 1794, State Trials, vol. xxiv. p. 448,
properly drew the distinction between what an agent
does, and what he says has been done. This letter only
professed to be a narrative of what others had done, and
the writer was not shown to have been a co-conspirator.
Had he been so, according to the principle stated by
Erskine in the case referred to, the letter would not
have been evidence against the party to whom it was
addressed.
The Lord Advocate replied, that although it had not
been shown that Ferguson, the writer of the letter, was
in any way conaected with the conspiracy, it had been
shown that Walker, who also subscribed it, and Gum-
ming, to whom it was communicated, were both members
of the Chartist Committee, and it could not be supposed
that it would reach Cumming's hands, except through
the medium of the prisoner Ranken. This circumstance
caused the case to differ essentially from that of Hardy,
where the writer only was said to have been a conspira-
tor, and not the receiver. He also quoted Lord Mon-
creiff 's opinion in the case of the Cotton Spinners.
LoED Medwyn. — The document in Hardy's case con-
tained only the relation that certain songs were sung,
written by one person to another, who was unconcerned
with the crime charged. It was not a letter written
from one conspirator to another. Here Walker is
proved to have been a conspirator as much as Ranken.
The important point is, that at the end of the letter
there is a statement that the letter is to be handed to
Cumming, and the letter is found in Cumming's hands
56 CASES BEFORE THE HIGH COURT
johnGrant '^P^"" ^^^ presumption is, that it came to the person
and Others, entitled to opcu it, was opened, and shown to Gumming.
HighCourf Ey'en if Ranken had never seen the letter, I think it is
Nov. 13. .
1H48. good evidence. I consider this case greatly ditterent
Conspiracy from that of Hardj.
Lord Moncreiff. — My impression as to the case of
Hardy was different. I suspect yet it was the case of a
letter from one conspirator to "another, and that it was
admitted. I see no objection to this letter. It is signed
by Walker, and may be considered his as much as Fer-
guson's It is addressed to Ranken, and to be communi-
cated to another alleged conspirator. It is said for the
pannel that he did not see the letter. This may be in
the first instance supposed. But, suppose he did not
see it at first, he might afterwards see it, therefore it is
not to be assumed that he never saw it. It is said that
it contains a narrative only. But it is put in as proving
a conspiracy, and a narrative of things said to have been
done may be a most important item of evidence.
Lord Justice-Clerk. — It is always satisfactory when,
in giving a decision, we find the opinions of other Judges
coinciding with our own. But when there has been
great difference in the decisions delivered, we are better
situated to decide after the lapse of fifty years, than
when the point rose suddenly, and two of the most emi-
nent of the English Judges differed from the majority of
the Court. I have often considered the case of Hardy, and
I find it often alluded to by others. Giving due weight
to the opinion of the majority, I think it went on a mis-
apprehension. In conspiracy, the purpose and intention
is what is to be proved. The acts of those concerned,
though unknown to the prisoners, may be good evidence
of the design. Thus, in the case of Brandreth, it was
permitted to prove acts done in one part of England, to
establish the design entertained in common with those
in another. In the same way a statement of the parti-
culars at a meeting is evidence to prove the intention ;
also (as in this case) a letter expressing ^ approbation of
AND CIRCUIT COURTS OF JUSTICIARY. -■ 57
tlie procedure. The narrative of the progress, of the No. e.
^T . 1 ^ .„,,„,. . . r. ,1 John Grant
National Guard, ot the ieeang in its lavour, all go to and others,
show the purpose as much as if the facts were true. It HighCoun.
is part of the folly of such means that people delude ^ "848. "
themselves. But, does a statement that may be false, conspiracy
avowing vs^hat the purpose is, less prove that purpose be- " '*"'°'
cause it occurs in a pretended narrative of what has not
happened ? Therefore, I think it was a misapprehension
to say that the document in Hardy's case was not evi-
dence because ,it was not proved that the songs were
sung. The fact of making the narrative (though false)
may prove the purpose of the conspirators. As to the
objection that the letter was not received, I lay that
aside as of no importance. It is good evidence, just as
statements made by the conspirators here would affect
him when in London. He may take away the effect by
subsequent explanation, but in the mean time, it must be
received. A person once joining in a conspiracy may be
answerable for much which he did not intend. Assum-
ing then that the letter was not seen by Ranken, I think
it good evidence. My brother, Lord MoncreifF, is under
a mistake in supposing that the document was admitted
in the discussion in Hardy's case, to which reference has
been made. Another document was received, as to which
the facts were thought to be different.
Lord Moncreiff. — I see it was so. But I concur on
principle in receiving this document.
The Lord Justice-Clerk in proceeding to charge the
Jury, said — There were three remarks which, in the out-
set, he felt himself bound to make. The first was, that
it had been urged by the Crown, and not the less strong-
ly, from the intention having been disclaimed that it was
of great importance from the character of the times to
put down the doctrine that, under any circumstances,
any body of men for the attainment of any political
object, were entitled to use violence. Whatever may
be the importance at any particular juncture of repress-
58 CASES BEFORE THE HIGH COURT
No. 6, ing such a doctrine, it must be remembered that such a
John Grant . , . . , . , . . ^ au '
and Others. Consideration cannot weigh ili determining as to the
High Court, guilt or innocence of the pannels. Though the conse-
1848.' quences of a verdict of not guilty might be fearful, from
Conspiracy a misapprehension of the grounds on which that verdict
B itiou. proceeded, yet if you cannot, from the evidence laid before
you, find the pannels guilty, you are bound to declare
them innocent. The second remark applies to an argu-
ment yet more illegitimate, and very mischievous, which
was pressed on the part of the pannels, that you should
hesitate to deliver a verdict of guilty, although such
might be your conviction on your oaths, from the notion
that such a verdict would create discontent in some por-
tion of the community ; or, that it might have the effect
of elevating the accused into the importance of political
nlartyrs. If the crimes should be proved to your satis-
faction, you will be violating your oaths if you fail to
give a conscientious verdict, because you antipicate inex-
pedient results. The Jury must, from the facts laid be-
fore them, say whether the pannels are guilty. And I
may add, that I never knew a verdict returned after con-
scientious deliberation, that did not carry its due weight.
Neither have I found, that when the prosecution is just,
that a verdict of guilty was attended with the results
pointed to by one of the counsel. It was urged upon
you, that great allowance was to be made for the feelings
of men, who, unable to raise themselves above the bur-
dens and privations of daily toil, could not submit to the
sight of greater means being in the possession of the
upper classes, whom they might think not more worthy
than themselves, and that great indulgence on that score
was to be made for any violence of language which may
be proved against the pannels. Now, while I quite con-
cur in the feeling that great latitude may be taken in
the free discussion of public events and of political
changes, yet I know no more mischievous doctrine than
to claim toleration for violence as to the differences in
the social conditions of mankind. Such violence is, in
AND CIRCUIT COURTS OP JUSTICIARY. 59
trut^, the outbreaks of the evil heart of man, rebelling No.s.
against the decrees of Providence as to his lot and situa- ana others.
tion in life, which lead him, instead of bearing such dis- High Court.
pensations with Christian resignation, to attempt to in- is^g/
volve all society in confusion and misery, in the vain hope conspiracy
that he may benefit by the spoil of others, whom, from ^ Sedition.
such selfish feelings, he is ready to plunge into distress.
This is the plain truth as to all such topics as I was sorry
to hear descanted upon by one of the counsel. But,
really such declamation was quite beside the present case.
We have fortunately no evidence that the pannel, for
whom such mischievous views were urged, had been actu-
ated by any such dangerous and wicked and unchristian
feelings. All that is alleged against him, or can be col-
lected from the case as insisted in by the Crown, is simply
seditious language and proceedings, in the course of ad-
vocating and attempting ordinary seditious objects, tend-
ing to create insurrection. I am one very ready to make
the utmost allowance for the language used by men at
political meetings, who know very little, from their pre-
vious pursuits, of the import of what they are uttering,
and have no definite objects in view. But, while great
'freedom may be claimed in such a case, that is a very
different thing indeed from the attempt to justify, or
palliate, or excuse, violence of language and incendiary
declamation, because, forsooth, those who, by the decrees
of Providence, must labour for their bread, cannot sub-
mit to the inequalities of human society, and cannot re-
frain from incitements to general confusion, in the hope
of bettering their own condition. The latter feeling is,
I again say, the rebellion of the evil heart of man against
the dispensations of Providence, and is the very wicked-
ness which the spirit of evil excites, as the most prolific
sources of fearful crime. Fortunately we have no such
case here. Nor can I believe that the case of the pan-
nel, if he is found by you to be guilty, will be viewed by
his own class (for I have a better opinion of their religi-
ous and laoBal feelings), as an instance of a man unjustly
(50 CASES DEFORE THE HIGH COURT
No. 6. punished for trying to better his own condition and that
aj^d othere. of his associates : The lower orders in this country know
High Court, well that anarchy, and general confusion and disorder,
^isis.^' would only -add to their privations. I have adverted to
Conspiracy theso topics, because I think they ought to be banished
& Sedition, altogether from courts of justice.
The third remark I have to make is, that in judging of
such offences as these, while it is on the one hand true, that
the extravagance, the folly, and the absurdity of the lan-
guage used, may be of great importance in enabling you
to come to the conclusion, whether the speeches were
used with such a deliberate purpose — a seditious purpose,
as is imputed in the indictment ; yet, on the other hand, it
is dangerous to hold that because they are silly, they
may not also be mischievous. It would be hazardous, if
you should think the pannels guilty of forming the Na-
tional Guard, yet because you think the project extrava-
gant, that therefore it is to be treated only as folly, and
a verdict of acquittal returned on that ground. Such a
course is not reconcileable with law, or with the expe-
rience of man, as to the results which may follow from
many extravagant and very silly proceedings.
Whatever difficulties might have been expected to arise
in point of law, he was happy to say that none really ex-
isted in the case before the Court. The whole question
was, were the charges made against the pannels proved ?
If they were, there could be no doubt they amounted to
the crimes of conspiracy and sedition,, subject to the de-
termination of the Court upon the construction of the
charge of conspiracy, as to whether it was in fact any thing
else than sedition. His Lordship then went over the
whole proof, commenting upon it and explaining its bear-
ing as he went along.
The Jury, after deliberating for half an hour, return-
ed the following verdict : —
' The Jury unanimously find the charge of conspiracy
' against the three panels, as libelled, not proven.
AND CIRCUIT COliRTS OP JUSTICIARY. 61
■ ' The Jmy also unanimously find John Grant not j^^^o-g^^^^^
' guilty of sedition, as libelled. andothpra.
' The Jury further unanimously find Robert Hamilton ^jf^^^"'^'"*-
* guilty of using language calculated to excite popular i848.
* disaffection and resistance to lawful authority. conspiracy
' And, by a majority of one, find Henry Ranken guilty
' of using similar language.' *
The Lord Justice-Clerk. — Gentlemen,be goodenough
to observe, in regard to that part of the verdict which
contains the specialty finding Hamilton and Ranken
guilty of using language calculated to excite popular dis-
aflfection and resistance to lawful authority, that this is
the description of sedition libelled. Now, to make your
verdict correct, you should determine whether they are
guilty, or not guilty, of sedition, to any extent you please.
You may say, for example, that they are guilty of sedi-
tion, in so far as they used language calculated to excite
popular disaffection and resistance to lawful authority.
The Chancellor of the Jury. — That is what we mean,
my Lord.
Lord Justice-Clerk;. — In using the word ' calculated,'
do you mean to leave out the word ' intended ;' or, does
your verdict mean to embrace both ?
The Chancellor. — We meant purposely to leave out
the word ' intended.'
The Verdict was then recorded as follows : — ' The
' Jury unanimously find Robert Hamilton guilt of sedi-
' tion, in so far as that he used language calculated to
' excite popular disaffection and resistance to lawful
' authority ; and, by a majority of one, find Henry Ranken
' guilty of sedition in the same terms.'
Logan thereupon objected, that this verdict as re-
turned, was insufficient to support a sentence. — In re-
spect of which objection, the Court continued the diet
until the 18th of November.
62 CASES BEFORE THE HIGH COURT
James On the motion of the Loed Advocate, the Cotirt de-
j^. °"^"^'- serted the diet against the pannel James Gumming, sim-
Nav. IS. pliciter, and dismissed him from the bar.
Conspiracy
& Sedition.
Preaent,
^llll^' The Lord Justice-Clerk,
Lords Mackenzie, Moncreiff, Medwyn, Cockbubn, and Wood.
No. 6. The pannels, Ranken and Hamilton, having been
and o^r^! placed at the bar, the Lord Advocate moved for sentence
Hi-'h Court, against them in the usual form.
^mV^' Whereupon Logan, in support of the objection to the
;:; — : verdict, urged, that in page six of the indictment there was
Conspiracy ' o ' r a
&. Sedition. anallegationofintention,which overrode the whole charge.
In a conversation which occurred between the Justice-
Clerk and the Jury, the latter explained their meaning.
Their attention having been called to the particular
charge, and it having been pointed out to them that the in-
dictment charged that the language used was intended,
as well as calculated, to produce the effect charged, the
Jury stated that they purposely omitted the word in-
tended ; the verdict was defective, in respect that the
terms used by the Jury did not amount to sedition, and
were defective in an essential quality of the crime.
Without going into the general question, that dole is
necessary in every crime, intention was undoubtedly
necessary to constitute sedition. It was necessary also
to charge it in an indictment; though it was not
necessary to prove what actually passed in the mind of
the pannel, yet, where the Jury negatived intention, the
verdict was not for the prosecutor, but for the pannel ;
Hume, vol. i. p. 351. He more expressly sets forth
necessity of intention, vol. i. p. 553. It was not con-
tended that calculated might not sometimes comprehend
intended. The plans of a surveyor are said to be cal-
culated to promote his work, and they are also intended
so to do. But it was necessary that the words should
be not only intended, but in themselves suited and fitted
AND CIRCUIT COURTS OP JUSTICIARY. 63
to promote the object in this case. When the Intention No. 6.
was brought before the Jury they found the words cal- and others.
culated, and negatived the inference of intention. HighCom-t.
The LoED Justice-Cleek. — What I want to know is, Ills. '
what Mr Hume means by suited. Conspiracy
Logan. — He means fitted. Suited and calculated ^ ^^'^*°"-
mean the same.
Lord Mackenzie. — You mean the words are capable
of that interpretation.
Logan, in illustration, referred to cases, Hume, vol. ii.
p. 457, to show the converse of his proposition, cases in
which a special verdict was held good. In vol. xxiii.,
State Trials, there were several indictments shewing the
necessity of libelling intention.
Lord Justice-Cleek. — There are at least a dozen
other indictments in that volume.
Logan. — Yes, but they all more or less explicitly set
forth the necessity of intention.
Lord Justice-Clerk. — Not as I read them. You
need not refer to those containing charges of convention
and conspiracy ; I allude to those confined to sedition.
Logan. — It was clear, on the authority of Hume, that
malus animtis was of the essence of sedition ; and from
indictments extending over twenty years, in which
wicked intention was charged in as many words, or neces-
sarily implied by the way in which facts were set forth
therein, that it had always been so considered. In ana-
logous cases, where the verdict negatived the essence of
the crime, it was not a verdict on which sentence could
follow. Take theft, for example, where the animus
furandi was negatived. In many old cases the pannels
were found guilty of carrying away, but no sentence fol-
lowed ; Hume, vol. i. p. 73. Again, in fire-raising, it was
held to be no verdict unless, by necessary implication, it
appeared that the fire was applied with felonious purpose.
LoED Justice-Cleek. — That crime bears the wilful
nature in the major.
Logan. — But here the major sets forth that words
64 CASES BEFORE THE HIGH COURT
No. 6. calculated and intended to produce a certain effect (the
and othera. Jury havc found they were not intended), and the
High Court, analogy of the cases referred to was applicable. Take
^°8"48.^" deforcement, and suppose the crime being set forth by
Conspiracy nomen juHs only, the Jury find guilty of deforcement, but
& Sedition. jjQ^. proven that the party on whom it was committed
was an officer of the law.
Lord Justice-Clerk. — There is no analogy.
Logan. — In hamesucken, suppose it found that the
party did not enter the house with the purpose of com-
mitting the assault. The case of Stein, Hume, vol. ii.
p. 459, was directly in point. The major set forth sedi-
tion, and the prosecutor was bound to set forth in the
minor facts relevant in law as amounting to that crinie,
having thought it necessary, not only to set forth that the
words charged were seditiously spoken, but libelled and
undertaken also to prove the intention with which they
were used. Had the indictment not contained this, there
would have been an objection to its relevancy, as might
be seen from the cases and the analogy quoted. The
Court, however, were not dealing with relevancy, but
with the finding of the Jury on the facts ; and it must
be observed, that the words ' guilty of sedition' were not
in the original verdict, and the second part of it was
clearly intended to negative the allegation that the
words were used with the intention libelled. It is not
a good answer that the Jury have returned a verdict on
which a presumption of guilt might follow. The Court
are bound to deal with the verdict, and, as it stood in
connection with the charge ; if it did not amount to the
offence charged it was irrelevant ; Hume, vol. ii. p. 448.
The Jury had not found guilty of sedition merely, but
guilty ' in so far as,' &c. The question whether this
was a sufficient finding, must depend on the determina-
tion whether intention, either express or implied, was of
the essence of the crime.
MoNCREiFF. — The primary question was, what did the
Jury signify ? Hume, vol. ii. p. 456. If under an in-
AND CIRCUIT COURTS OP JUSTICIARY. 65
dictment, charging calculated and intended, the Jury No. 6.
find the words calculated, but purposely omit intended, and others.
they must have meant that it was not intended to pro- riigi, court.
duce the result. It could not be doubted that intention ^"848.^"
was of the essence of the crime. It might not be neces- conspiracy
sary to libel, or to find it in the verdict in terms, as it ^ s^^'*'°"-
might be deduced. But the condition of the argument
was, that it was negatived. If the pannels were tried
for using reckless language, that was no crime per se ;
if the indictment had libelled calculated, but not intended,
that would not have amounted to sedition. Here the
verdict negatived the terms of the indictment.
Craufubd. — In the major, the charge was simply se-
dition, which required no explanation in either the in-
dictment or the verdict. The pannels put their state-
ment incorrectly, when they said that the charge was,
that words were used, calculated and intended to pro-
duce a certain effect. The charge was, that they openly
and seditiously used words, and the rest is descriptive,
and intention was implied in the charge. Starkie on
Libel, 2. 331. And at p. 344, Starkie draws the dis-
tinction between doing things in their own nature law-
ful, and those by nature unlawful. On this principle
there was no criminal intention to be stated, or found,
or proved as a separate matter. Where the words
were unlawful, unless want of intention be clearly and
positively found, the verdict was a conviction. The
cases, occurring at end of last century and beginning of
this, were of two classes. The one, where the prisoners,
though not actually accused of conspiracy, were yet
connected with a convention, and the intention to con-
spire was necessarily set forth. In the other cases,
where there was no conspiracy, the word intended is not
introduced. But the case of M'Laren and Baird, State
Trials, vol. xxxiii., is still more explicit. In particular,
the opinion of the Justice-Clerk, p. 127. Every crime
in which will was involved, implies such an amount of
iiltention as to make it criminal
66 CASE8 BEFORE THE HIGH COURT
No. 6. An /explanation was made by the Jury, of which I
and Others, give the pannels the full benefit. If this was an expla-
High Court, nation discharging from the offence the general intention
Tm. ' involved in sedition, he could not ask for sentence. But
Conspiracy the Jury had purposely remained silent as to such im-
& Sedition. jjjjgjj intention, in so far as it was legally involved in the
crime of sedition. They had in general terms found guilty
of sedition, and that finding must have its legal effect.
Lord-Advocate. — The pannels were charged with
sedition, and with speaking on certain occasions certain
words, characterised in a particular manner. The Jury
returned the verdict now under consideration. The in-
dictment says intended and calculated. The point to be
made out on the other side is, that it was necessary for
the prosecutor to libel intention as distinct from calcu-
lated. Looking at the indictment on one hand, and the
verdict on the the other, he found nothing to stop him
from saying that the verdict was good, and that it must
have its legal effect. The pannels said he was not
to stop at the record. An explanation was made by
the Jury. Though he was thus going to extraneous
matter, he would not object, as the proceeding which
took place between the Court and the Jury was cotem-
poraneous with the verdict. It would be strange if the
explanation was to nullify the verdict. The Jury find
guilty of sedition, and then proceeded to say, in so far as
he used words calculated to produce that which is sedi-
tion ; they simply abstain from saying anything of in-
tention. Had they refused to specify intention where it
was necessary to state it specifically, it would have been
a different matter. That is not the case here. They
found all the criminal intent necessary for them to find
to be averred, when they found guilty of sedition; and
if they had not found with respect to the specific intenr-
tion, neither have they negatived the intention.
MoNCEEiFF.— It is important to be cautious, lest per-
sons not convicted by the jury should be punished. The
verdict must be clear, and the prisoners have the benefit
of any doubt. He did not concede that it was enough
AND CIRCUIT COURTS 6F JUSTICIARY. 67
for the prosecutor to put down words, and simply charge No. 6.
^ ,. . S , 1 . ^ *' ?. John Grant
them as seditious. In whatever way the intent was h- and others.
belled, it must be done either inferentially or directly. High Court.
If this was true, the next proposition was certain, that "lis. '
intention was not only of the essence of the crime, but conspiracy
a fact to be proved. Not a separate intent apart from * s^^'*'""-
the words; but it was as necessary to prove the intent
as the words. If the prosecutor undertook to prove to
the Jury that the words were calculated and intended
to produce a particular result, and then said one meant
the other, he contradicted his indictment. Two things
were to be proved under such an indictment, viz., both
the fitness and the intention. Whether intent was to be
inferred from words, or from facts, it must be proved.
4. Barnewell and Alderson, 430 ; King v. Burdett ;
M'Laren and Baird supported this proposition. Wickedly
and feloniously was there set forth, which implied intent.
The question came to be, had they done this? Nor
would the verdict imply it ; but were the Jury satisfied
thereof. The pannels were entitled to assume, that
when the Jury refused to find intention, they found inten-
tion not proved. They were not to construe the verdict
to the effect of leaving the Jury to find on matters of
law. If they find guilty of sedition, coupled with an
explanation showing that they did not find what in law
was sedition, the verdict was a verdict of acquittal. The
question was, what did the Jury mean by sedition?
They have explained guilty of sedition, if speaking those
words is sedition, but not otherwise. The Jury were
not satisfied of the criminal intent ; they have negatived
it by implication, and there is nothing to shew that if
they had been sent back, they would not have acquitted.
The Jury might have been satisfied that the words were
spoken without the intention libelled, and may have
meant to have said so ; and if so, the pannels are not
guilty of sedition.
The Court being divided in opinion, adjourned the diet
until the 25th of November.
Nov. 25.
1848.
68 CASES BEFORE THE HIGH COURT
Present,
The Lord Justice -Clerk,
Lords Mackenzie, Monckeifp, Medwyn, Co6kburn, and Wood.
No. 6. Their Lordships then delivered the following opi-
JoliD. Grant •
and Others. HIOHS :
High Court. The Lord Justice-Clekk. — In every view which has
1848^. been presented against this verdict, there are, in my opi-
Conspiracy nion, either unwarranted assumptions in point of fact, or
& Sedition. ^^^^ grave misconceptious in point of law.
The jury stated, in answer to a question from myself, that
they purposely left out the word intended in reference to
the averment at the close of the indictment, descriptive of
the character of the language used by the pannels. This,
therefore, was matter of deliberation before they settled
the terms of their verdict ; and the eifect of this, in their
minds, must also have been well considered, because,
against one of the pannels, the verdict was only returned
by a majority of one. Then, after this resolution, they
proceed, as they ultimately explained their verdict, and
stated what was their purpose throughout, to find the
pannels guilty of sedition, in so far as that they used lan-
guage calculated to excite popular disaffection and re-
sistance to lawful authority. This is the result arrived
at, then, after their deliberation on the word ' intended,'
and that such a result should be equivalent to a verdict
of not guilty, is a conclusion opposed, in my apprehen-
sion, to every sound legal principle and to the plainest
suggestions of common sense. Had the point not oc-
curred on a verdict in a criminal case, I do not believe
that such a notion would have occurred to any mind.
Indictments for sedition, as framed according to the
law and practice of Scotland, generally set forth in the
minor, that the accused — ' wickedly and feloniously used,'
or ' seditiously used' certain language, which is there de-
scribed as being of a certain character, generally said
AND CIRCUIT COUKTS OF JUSTICIARY. 69
to be ' calculated^ sometimes, but not so often, ' intended No. 6.
. John Grant
' and calcmated,' sometimes ' tending,'— sometimes is not and others.
so described at all, but left to the construction of the High Court.
Court and Jury, and merely said to be ' seditious.' isit.
Now, two remarks arise on this the settled style of Conspiracy
•^ & Sedition.
the indictments.
1. That the real and proper averment in the minor, of
the guilt of the pannels, is in the allegation that they
seditiously used the language imputed to them. This is
truly the proper allegation of guilt ; The appropriate
place for it : The proper form of it. The description of
the character of the language used is a different allega-
tion,— ^not, in truth, necessary at all, — and when used,
going not so much to the general guilt as to a particular
quality attached to the particular words, in addition to
their plain import, in so far as it is also said, that the pre-
cise effects which they are calculated to produce were in
the actual intention of the party in the clioice of them.
Now, this particular averment may be established in
whole or in part, when it is set forth in the indictment.
But the failure to prove part of that particular averment
— e. g. the failure to prove that the words were intended
to produce the exact effect which it is proved they are
calculated to produce, — does not necessarily, either in
legal principle, or by the style of indictments, or by the
reason of the thing, negative the general averment,
that the pannel used such language, not innocently, but
seditiously, looking to the place, the occasion, the num-
bers present, the circumstances of the time, the wilful
recklessness of all consequences, the violation of his duty
of allegiance, and the general purpose of mischief which
the averment of ' seditiously speaking' them imports.
If the language is not in itself calculated to produce
any impression tending to evil results on the minds of
the auditors — if the language is indifferent, or bears a
meaning apparently foreign to a seditious meaning, but
was intended to import something different, and to be so
understood and applied, then the particular intent with
70 CASES BEFORE THE HIGH COURT
No. 6. -which the words were actually in that case spoken, and
John Grant " i. I," V
and Others, not their teadency, comes to be the averment wnicn
High Court, must be made out ; e. a. If the words were, ' God save
Nov. 25. ' ^ , , . J •
1848. the Queen' — but this was meant and understood m some
Conspiracy caut language of seditious orators, to mean, ' Let us de-
' ""■ pose the Queen,' and were spoken in truth as an exhorta-
tion to that effect, it would be necessary to aver and
prove the special intent with which such words were
spoken, for their tendency would not apparently pro-
duce any evil result : And hence, in addition to aver-
ring that such words were ' seditiously spoken,' the actual
and special meaning or intent with which these particu-
lar words were spoken, must be libelled and proved.
So also in another class of seditions, such as was also
charged in this indictment — a conspiracy to effect a
change in the Constitution by force and violence ; that
particular intent is, then, of the essence of the crime, and
the acts, however seditious in themselves, would not
prove the charge, if such was not made out to be directly
the design and purpose of the conspiracy.
When, on the other hand, the plain and direct ten-
dency of the words or writing is, in the opinion of the
jury, to produce evil results, because so calculated, then
the particular intent in the mind of the speaker as to the
effect of these words, provided he spoke or published
them, not innocently, but looking to all the circumstances,
unlawfully, comes to be immaterial to the offence of se-
dition and to the averment of guilt in the indictment.
2. The second remark I have to make is, that when a ver-
dict on such an indictment as this, or on any indictment for
any other offence in Scotland is returned, finding pannels
guilty, it is never of the offence in the abstract stated in
the major. It applies to the facts in the minor. Hence, a
verdict, guilty of sedition, in so far as he used language
calculated, &Ci, need not repeat, and such verdicts never
do repeat, in so far as he seditiously used, &c. This is
quite a clear and fixed point. In a case of theft, if the
pannels stole only some of the articles, or did not steal
AND CIRCUIT COURTS OP JUSTICIARY. 71
them from a lockfast place as libelled, or under trust as No. 6
■* John Grant
labelled, as aggravations, if the jury return a verdict and others.
guilty of theft, in so far as that he took the v^atch, leaving High court.
out money, or took them from an open drawer, or in a isis. '
way which excludes the trust, it is not necessary for them conspiracy
to say further, in so far as that he theftuously took them. ^ ^ '*'""'
The words guilty of theft, completely establishes the cha-
racter of the act of taking. Just so, guilty of sedition,
establishes the character of the act of using the language,
else the party could not have been found guilty of sedi-
tion. This is a point so thoroughly fixed, settled, and
plain, that although I alluded to it in the course of Mr
Craufard's address, it was not attempted to be contested
by Mr Moncreiff in reply. It is a point, however, ex-
tremely important in the consideration of this verdict, and
of its application to the indictment. In my apprehen-
sion decisive, unless the whole averment in this indict-
ment is necessary to the crime of sedition.
In all such questions, the practice of the Court — that
is the style and structure of indictments in a variety of
cases, all of which have been under the -notice of the
Court and found relevant — comes to be the law of the
Court. This proposition has received the ftill assent of
the whole Bench on many occasions, and especially on
one late occasion, (Janet Campbell, Nov. 4. 1846), when
only one judge dissented from this rule of law, on a very
important matter, so deduced from the practice of the
Court as often acted upon.
Indeed, in criminal law, I know nothing truly more
dangerous, and if any question as to the privileges of the
subject can be supposed to be involved, however indi-
rectly, in this case, more likely, I should say, to be pre-
judicial to the interests of the subject, than loose, un-
authorized, and hasty departure from settled practice,
because in one case a pannel or the prosecutor may have
accidentally an interest to try to free himself from the
rules of such practice.
Attaching, then, great importance to practice, the first
72 CASES BEFORE THE HIGH COURT
No. 6. question I address myself to is this — was it necessary in
and others, an indictment for sedition, for the public prosecutor, who
High Court, lias averred that the words were ' seditiously used,' to set
1848. ' forth that the words were intended as well as calculated.
Conspiracy to produce the results ascribed to them ? If left out, is
^ ' """■ the offence complete — is the indictment charging the
offence equally good ? And if, when purposely left out
by the prosecutor, the indictment is good, is it necessary
that the jury should find what the prosecutor might thus
competently leave out as immaterial ? If the indictment
charging sedition is good, when it says the words ' sedi-
' tiously used' were calculated to produce the results in-
volved, but ex proposito leaves out the allegation that
they were intended, can a verdict be bad which finds
guilty of sedition, in so far as, that he used words calcu-
lated to produce the evil results, but omits purposely the
further and separate averment that they were used with
that particular intent ?
Distinctly, aiid in terms, the pannels' counsel did not
plead that an indictment would be bad, unless it was said
that the words were intended to produce the particular
results ascribed to them. It was said the proposition was
not admitted, but that they would waive arguing the
point. But the point is, in my judgment, at the founda-
tion of the whole matter — and no opinion can be sound
or satisfactory which is not based on the consideration of
the rule and practice of the Court on that leading point.
Let us see how the practice stands, — and this is the
more important, because in nearly all the cases to be re-
ferred to, the pannels were aided by counsel of the
greatest eminence and talent.
1. Berry and Robertson, 1793. Here, the question, if
doubtful, arose even on the major proposition, which set
forth, ' the wickedly and feloniously printing any sedi-
' tious writing or pamphlet, containing false, wicked, and
' seditious assertions, calculated,' &c., and then the pub-
lishing of any such. Then the minor merely said that
they printed and published, wickedly and feloniously, a
AND CIRCUIT COURTS OF JUSTICIARY. 73
' seditious' pamphlet. The counsel w ere Mr Wight and No. «>
,, T^, , , , , . . , , T. John Grant
Mr Fletcher — both zealous constitutional lawyers, cut and others.
no objection was stated to the relevancy, though remarks HighCourt.
were made as to the object of the pannels being only to isis.'^'
make gain by the sale — a purpose perfectly consistent conspiracy
with the seditiously publishing ; for, I believe, in nine ^ *""'
cases out of ten, gain, celebrity, collection of tribute, and
so forth, are the real motives, and that the parties speak-
ing or publishing the sedition, know that their trade
would be destroyed by any actual commotion ; and often
exhort to peace, at the v.ery same time they use the most
inflammatory and seditious language. The jury found
that the one printed and published, — ^the other published
only, — the pamphlet libelled on. This verdict was objected
to by Mr Wight, and afterwards also by Mr Henry
Erskine. The argument is most instructive. Mr Wight
contended that the allegation that the pamphlet was se-
ditious, or calculated to do so and so, was not affirmed
by the verdict. In that argument, the tendency of the
writing is taken to be the point to be established in a
case of sedition. Then he argued the criminal purpose
or illegality of the act, was averred in the indictment, in
the words ' wickedly, and feloniously ;' and that this, the
proper averment of the purpose or intention, was not af-
firmed by the verdict. In that debate, the illegality of
the act is properly taken on both sides to be averred in
that part of the indictment ; but it is not supposed that
the particular intent which might be ascribed to any par-
ticular words, was of the essence of the crime. As Mr
Henry Erskine well sums up his argument against the
verdict — The libel says, 1. That the pannels printed and
published the pamphlet ; 2. That they did this wickedly
and feloniously ; and 3. That the pamphlet was seditious,
and these facts must be found. The judgment on the
verdict might also be referred to in support of the view
I take of this verdict as a very important authority. But
I pass over that as of less direct application.
2. Smith and Memmons, 1793.-^Major, — wickedly and
74 CASES BEFORE THE HIGH COURT
No. 6. feloniously publishing any seditious writing, tending to
and otS. create a spirit of disaffection, and to excite tumult, &c.
High Court. 3. Skirving. — Major, sedition — Minor, Whereas a se-
me. ' ditious or inflammatory writing, calculated so and so, was
Conspiracy Sent to Skirviug to be circulated, he did circulate the
& Sedition. ^^^^ rpjjjg pg^^j. ^f ^j^g indictment was distinct and apart
from the after charge as to the Convention.
Mr Blair — ^who alone conducted that prosecution —
thought it necessary to state his views on the 2d part of
that indictment at considerable length, — the more so, as
we all know, because, from his absence at the other
trials (an absence not peculiar to them) a very false re-
port had been raised that he disapproved of the prosecu-
tions ; but, on the first part of the indictment, he simply
said he held the crime to be completely and well laid
in the libel.
4. Morton, Anderson and Craig — the major sets forth
only, ' uttering seditious speeches, tending to create,' &c.
I think the minor comes to the very same thing, as no
intent as to the particular words set forth is annexed to
them, different from the seditiously or wickedly uttering
them. This was the first case, I believe, in point of
time, and an argument was stated, though hardly amount-
ing to an objection. The Judges gave their opinions
seriatim on the indictment. Lord Henderland particu-
larly gives his opinion on the major I have quoted. I
think the rule of law is well stated by Lord Justice-
Clerk Braxfield, vol, xxiii. p. 15, especially in his refe-
rence to the case of blasphemy as analogous. He ob-
served, ' that it was no good defence to say, that the
' words here spoken were mere verba jactantia. They
' were obviously of a most wicked and seditious import ;
' and no. plea of rashness, wantonness, or conviviality,
' could be admitted as an excuse. His Lordship illus-
' trated this by referring to the horrid crime of blas-
' phenay, where, though the words uttered could be no-
' thing else than wind, or foolish in the extreme, still they
' were impious and wicked, and might, in certain cir-
AND CIRCUIT COURTS OF JUSTICIARY. 75
cumstances be cognisable and severely punishable by a No. c.
criminal court.' and others.
5. Muir — ^the major there described the publications High Court,
as calculated — as of such and such a tendency — as tend- isis.
ing to produce, &C. Conspiracy
In the minor a specific intention is in some cases dis- ^
tinctly ascribed to the pannel — in others not — according
to the nature and import of the words and publications.
A great deal is said of this, and some of the more
noted cases at this time, by persons who, I firmly believe,
never read the indictments, and confound the acts and
publications with their opinion of the punishment. I re-
fer to them as unquestionably relevant indictments for
sedition — whether parties might have concurred in the
verdict returned by such men as Mr Homer or not.
6. Alex. Leslie. — Major, sedition ; as also the wickedly
and feloniously circulating any seditious publication, or
any publication tending to vilify, &c. the established re-
ligion.
iUfmor-— averred the wickedly and feloniously circu-
lating seditious publications ; also writings tending to
vilify : the seditious publications are also stated in an-
other place as tending to alienate, &c. Then the blas-
phemous work is again described as tending, &c.
7. T. F. Palmer. — Major, wickedly and feloniously
writing any seditious or inflammatory writing, calculated,
&c. ; also wickedly and feloniously publishing any such
sedition.
Minor — described the writing as of a wicked and se-
ditious import. To that indictment elaborate objections
were stated, at extraordinary length, by Mr Hagart ; but
limited to this, viz., that the writings set forth even as
matter for the Court in the first instance, not calculated,
on sound construction, to produce the effects ascribed,
and were not of the import and tendency stated, but that
the scope and burden (as Mr Hagart put it) were diffe-
rent. In a very long, zealous, and elaborate argument,
that is the only objection taken.
76 CASES BEFORE THE HIGH COURT
No. 6. Ml' M'Conocliie, first Lord Meadowbank, puts his
John Grant /■ t_ • •
and Others answer OH the ground of the import of the writing.
High Court. The opinion of the Court assumes the import to b6
?848. ' the matter for decision. Indeed, if special intention
Conspiracy had been ascribed to any particular words, or had been
necessary in law, the short answer would have been, — the
import of the publication we need not consider, and is im-
material, since the particular intention with which special
words were written, must be averred and is to be proved,
and has not been averred although essential. No such view
occurred to any one. In that case, the pannel was as-
sisted also by Mr Clerk.
The case went to the Jury.
I am not sure that there is to be found any where, on
the whole, a better practical exposition of the law of se-
dition than in Mr Clerk's speech to the Jury for Palmer.
We have it revised in the State Trials by himself, and it
is a beautiful instance of that great power of discrimina-
tion, and masterly precision of language which he pos-
sessed in so eminent a degree, along with the highest
order of legal talent. In the whole of that speech he
admits that the import and tendency of the writing is the
point in sedition, unless the party has a legal object in
view.
After explaining the general right of the subject to
discuss such important objects as reform, with fervour
and zeal, he says — ' He who speaks or writes to raise
' discontent or disturbance, or to bring the Government
' into hatred or contempt, is seditious, and he whose
' speeches or writings have that tendency is seditious, un-
' less in either case the speaker or writer has a legal
' object in view.'
Then, when he comes, after a long general argument
as to the latitude belonging to the subjects of this coun-
try to comment on the terms of the publication in ques-
tion, his argument is not whether such and such effect
are intended; but very specially and particularly he
says — ' Gentlemen, — I will not contend that a writing,
AND CIRCUIT COURTS OF JUSTICIAKY. 77
' malicious, — seditious in itself, and calculated to raise No. b.
T • 1 1 1 1 o ^"^'^ Grant
' sedition among the people — can be excused by the fact and others
' that no sedition was raised. In general, it is true in High Court.
' criminal cases, that intention is not sufficient to crimi- °usl '
' nate, unless the crime be perpetrated. But, in cases conspiracy
' of sedition, I am disposed to admit that the intention
' is carried into effect, and the crime is committed by the
' act of publishing the seditious writing. But, gentle-
' men, what are the circumstances here ? It is not
' proved that the purposes of this society went any far-
' ther than a moderate and a national reform. The
' hand-bill complained of the very grievances which are
' always enumerated by reformers ; and it was not either
' intended or calculated to raise sedition. It is true,
' indeed, that every publication against the measures
' of Government must necessarily raise discontents in
' the minds of the people ; for no such writing ever was
' published with any other intention than to shew the
' people what their true intent was, and that it had not
' been consulted by Government. Discontent is un-
' avoidable where public measures are wrong or thought
* to be so. But discontent is very different from sedi-
' tion. The people may be perfectly quiet amidst the
' greatest discontents. To render a writing seditious, it
' must be intended or calculated to urge the people to
' actual violence, and how can it be said that the hand-
' bill is of that description ? Where is the excitement
' to illegal acts of any sort ?'
In the charge to the jury, Lord Abercromby, in a
most temperate, lucid, and fair charge, puts the question
exactly as Mr Clerk put it — whether the writing libelled
on be of a seditious tendency.
8. Stewart and Elder. — Major, wickedly and felo-
niously writing and printing any seditious libel : Minor
described it as seditious ; also which inscriptions were
obviously calculated,
9. Alexander Scott. — Major sedition, as also wickedly
and feloniously circulating and printing any writing of a
78 CASES BEFORE THE HIGH COURT
Noj6. seditious import, and tending, calculated, &c. Minor
and others, same.
High Court. Other cases of the same sort mis^ht be cited from that
Nov. 25. T rr.
1848. period, but there are others of a later date. It is sum-
Conspiraey cieut to refer to one, the most noted in recent times;
10. M'Laren and Baird, 1817, — which attracted great
attention. Major, sedition. Minor, states that they
wickedly and feloniously delivered seditious speeches, cal-
ctdated, &c. ; the same is said of the publication.
These pannels were very ably assisted, and I know
from my friend Mr Campbell, of counsel for M'Laren,
that Mr Clerk, who conducted for M'Laren, bent his
whole mind to the case, as zealously as he could have
done in younger life, and directed anxiously the state-
ment which Mr Campbell made on the indictment before
trial. Mr Campbell says the passages will be a matter
for sound construction for the jury. The relevancy was
not objected to. For the other pannel, Mr Jeffrey ended
his explanatory statement to the Court with stating, after
a short explanation, that the object of the publication
was to get money ; ' that as to relevancy, much will de-
* pend on the interpretation to be given to the words
' libelled on.' And that indictment went to the jury with-
out any expression whatever, annexing to the particular
words any special intention, or implying that, in addition
to being seditiously spoken, the words were intended, as
well as calculated.
Intended was left out in the indictment. The convic-
tion was in terms of the indictment, and a good verdict.
Intended is in this indictment ; was it necessary to the
charge ? I hold not. The jury leave it out. Then, if
not necessary to the charge in any form, how shall the
verdict fall, or be equivalent to one of not guilty ?
This indictment charges sedition in the major.
The minor sets forth that Ranken did openly and ' sedi-
' tiously,' at a public meeting on Burntsfield Links and
other occasions, utter certain language, and the same is
averred as to Hamilton ; and the indictment closes with
AND CIRCUIT COURTS OF JUSTICIARV. 79
the sreneral statement, that the whole or part of the No. e.
1 o % • 1 1 111 ^°^^ Grant
language above set forth, was intended and calculated. and others,
Now, that the whole of the averments in an indictment High Court.
need not be proved and affirmed by the jury, if what is \u%. '
of itself clearly relevant is found, is in the general case conspiracy
admitted to be dear law. That this indictment was *
perfectly relevant without the words intended, and with
calculated alone, I apprehend to be a point fixed by
authorities, and clear on principle. That that which was
unnecessary, need not be found, is a point also quite
clear in our criminal law and practice. Hence, in the
abstract, and in any other case, this verdict is unim-
peachable. But then, it is said that the omission, pur-
posely by the jury of ' intended,' negatives the whole aver-
ment of guilt in the minor, and renders the verdict one
of not guilty in the case of sedition. How that should
be, if ' intended' need not be in the indictment at all, I
have not been able to comprehend. But the whole
argument is founded on a complete misapprehension, both
of the legal principles applicable to our indictments, as
also to the crime of sedition.
I have already adverted to the misapprehension of the
principles on which our indictments are framed.
1. The proper averment of guilt in the minor in this
charge of sedition, is in the allegation that the pannel
did openly and ' seditiously/ and in presence of great
numbers, utter the language imputed to him ; the aver-
ment which follows is properly descriptive of the character
of the language so seditiously used. To add intended
to calculated in that description is really, when care-
fully considered, an allegation quite misplaced, as well as
unnecessary to complete the full averment of guilt. It
may be true that the exg,ct effects which the language is
calculated to produce, were also intended. But that is
not the necessary or proper averment of guilt in a case
of sedition in the minor. The averment of guilt in the
minor is in this, viz., that the party did seditiously utter
language calculated.
so CASES BEFORE THE HIGH COURT
J f^G ' ^' ^^® second misapprehension is in assuming that this,
and Others, the proper averment of guilt, is not affirmed by the ver-
HighCourt. dict wheu the Jury, combining, as every verdict does, the
1848. ' major and minor, with the latter of which the jury have
Conspiracy particularly to do, find the pannels guilty of sedition, in
^ ' '" ■ so far as that they used language calculated to excite po-
pular disaffection and resistance to lawful authority.
3. But the main misapprehension is in regard to the law
of sedition ; and, in my opinion, it is a very great and
serious misapprehension.
The crime of sedition consists in wilfully, unlawfully,
mischievously, and in violation of the party's allegiance,
and in breach of the peace, and to the public danger,
uttering language calculated to produce popular disaffec-
tion, disloyalty, resistance to lawful authority, or, in more
aggravated cases, violence and insurrection. The party
must be made out not to be exercising his right of free
discussion for legitimate objects, but to be purposely,
mischievously, without regard to his allegiance, and to
the public danger, scattering burning firebrands, calcu-
lated to stimulate and excite such effects as I ha^e men-
tioned— reckless of all consequences. As Mr Clerk said
in Palmer's case, ' He, whose speeches or writings have
'that tendency, is seditious, unless, in either case, the
' speaker or writer has a legal object in view.
Now, in this case, I apprehend that the law does not
look for or require, besides this illegal spirit, this general
dole or legal malice, the additional and special element
of the intention, or purpose, with reference to the pre-
cise effects which the words are calculated to produce.
If such purpose is also proved, the case will be one of
more deliberate, more dangerous, and more aggravated
sedition. But very often the precise effects which the
words are calculated to produce, are not at all what
the party intends, and still more, not what he has
brought his own mind up to, just because they point to
immediate violence. The party guilty of sedition in
uttering such language is often only playing the part of a
AND CIRCUIT COURTS 0? JUSTICIARY. 81
field orator, hallooed on by shouts from an excited and No. 6.
turbulent crowd — often of the worst characters : He has and others.
to sustain his part as a leader ; has to outbid in exaggera- High Court.
tion and violence the man who spoke before him ; has "sia. '
got so familiarized to violent and dangerous language, conspiracy
that he does not think how they may affect others ; has * Sedition.
to secure a liberty for bold language, and often to secure
pay for such achievements : He is aiming, perhaps, at
being chosen as a delegate ; thinks, perhaps, that by
intimidation he may concuss and frighten others into an
exaggerated notion of the numbers and power of those
who venture to utter such language : He is reckless as
to what he says ; thinks and cares little about it, if it
answers the object at the time ; but all the while he
may not desire or intend the precise effects which his
words are calculated to produce — it may be of instant
violence. Yet of sedition he is clearly guilty, if these
reckless words are calculated to produce such results.
I take what appeared in another part of this case as
a very apt illustration of how little the intent to produce
the actual effects which the words are calculated to pro-
duce, enters into the guilt of sedition, in point of law, as
a necessary element. Your Lordships, who sat with me,
will recollect that, in reference to the part of the case
charging conspiracy, and the purpose of forming a Na-
tional Guard, for effecting changes in the constitution by
force — as to which the jury very correctly found the
charge not proved, but only not proved — we heard a
great deal of the language and proposals of a person,
whose warlike language (for it is lamentable to think how
commonly and frequently the purpose of arming seemed
to be talked of) obtained for him the nickname of Briga-
dier-General. Now, at a public meeting, in a hall in
Edinburgh, before 600 or 700, at which one of thepannels
was not present at all, this individual — I am assuming the
facts for the sake of illustration, of course not as true
— openly and distinctly purposed and exhorted the meet-
82 CASES BEFORE THE HIGH COURT
johl°Grant ^"S ^^ ^"'"^ ^ national guard of 1600 men, in companies
and Others, of 400, two of whicli Were to be armed as musketeers,
High Court, and the other two as lancemen, and enlarged on the
Nov. 25. "^
1848. necessity of chartists and all others resorting to arms ;
Conspiracy which seditious proposal was prefaced, one of the wit-
& Sedition. , ^, / , . , ^ i i x j
nesses who opposed it, stated, ' with a great rhodomontade
' of poetry ;' and Mr Logan, whose object was to shew
that his clients had always discountenanced this indivi-
dual, told us, as a proof of the extravagant pitch of
heroism to which he worked himself up (though that part
of the speech was not in evidence,) that he, at last,
declared that he was ready, and hoped, to head this body
against Her Majesty's troops, and that he had no doubt
he would rout all whom he might encounter, and out-
general the Duke of Wellington himself. Now, if an
indictment had been preferred against this party, who
was skid to have left the country, charging sedition, and,
in the minor, setting forth that he openly and seditiously,
at a public meeting, made this proposal, and used such
language, and had further averred that the language was
intended and calculated to stir up the people to imme-
diate insurrection under him, and to array themselves
under him as a leader against Her Majesty's troops ; and
if such proposal and language had been proved, I suppose
no Jury of reasonable men (unless the defence of insanity
had been established,) could have hesitated to say that
such a party was guilty of sedition in using language of
such import and tendency. But it would have been very
difficult, probably, to satisfy them, at least it would have
been very difficult to satisfy me, that this most redoubt-
able personage did really intend, or desire, to lead any
attack against Her Majesty's troops, or to encounter, I
do not say, the Duke of Wellington, but even to stand
the steady fire of a Serjeant's party of the very oldest pen-
sioners on the list. That would have been about the last
thing that I should have believed, that he had any intention
of doing. Yet, of sedition, such a proposal, and language
so calculated, would justly convict a party. This is just
AND CIRCUIT COURTS OP JUSTICIARY. 83
the distinction applicable to this case and verdict, ^.nd a Noj_b^^^
practical illustration, which shews the principle of the and others.
law, and the principle of our indictments. The exact High Court.
' r r Nov. 25.
effect which the words are calculated to produce, is one i848.
thing that may or may not be intended. The orators, on Conspiracy
such occasions, often know very little, and think very
little, of the effects which their words are calculated to
produce. But the wilfully and rciischievously using such
language against their allegiance, and against the peace
of the country, and the rule of law and order, makes
them guilty of sedition.
This wilful, disloyal, and mischievous spirit in the use
of such language, whereby popular disaffection and re-
sistance to lawful authority is directly encouraged and
excited, makes the crime of sedition, even although the
language used may not have been intended to produce
the exact effects which it is calculated to do.
Besides the general, unlawful, wilful, and disloyal
spirit, which is the illegal purpose charged by the word
' seditiously/,' to require that the precise intention to pro-
duce the exact effects which the words are calculated to pro-
duce, sbould be proved over and above a finding that the
party was seditious in using the language, would, in truth,
surround much most mischievous and dangerous sedition
with complete impunity ; for 1. such additional intention
it may be very diflBcult to prove ; 2. The whole appear-
ance, and manner, and conduct of the party, of his asso-
ciates, and of the meeting, may really satisfy all that the
exact effects which his words were calculated to produce,
were not really and solely designed by him. The man
may have been too excited to have any such deliberate
cool design as instant insurrection before him, although
his words were directly calculated to produce that result.
Nay, one might be quite satisfied of the reverse, — that his
object was to keep up great and alarming discontent and
agitation for his ovm base purposes, to secure weekly or
yearly contributions, as a reward for his trade; and that
he well knew that any actual outbreak would at once
84 CASES BEFORE THE HIGH COURT
Jota Grant ^^^^ *° *^^ extermination of his calling, and that such re-
and Others, gultg "were what he most dreaded, though he was using
HighCo^urt. language well calculated to produce these effects, unless
1848. he at the same time cunningly kept under, by his iniluence.
Conspiracy the Spirit he was tryins: to rouse. But though a Jury
& Sedition. , „ , ■' ° . , . . .1 j.
shall be satisfied upon that pomt, is the crime not that
of sedition, if the language is calculated to produce the
results, and if the party is acting unlawfully, contrary to
his allegiance, and to the peace of the realm, in using
such language in the circumstances, and on the occasion
in question, having no justification in object or occasion ?
Hence, then, the proper guilt of sedition (of that kind,
I mean, which is here prosecuted,) consists in the unlaw-
ful and disloyal spirit in which, contrary to the subject's
allegiance, and in violation of the peace and order of
society, and of the rule of law, language or publications
are used and circulated, calculated to produce, as here
found, ' popular disaffection and resistance to lawful
' authority.' And it is a misconception of the law to
suppose that the effects which the language is so calcu-
lated to produce must further be specifically intended,
so that the Jury must find that the words were intended
as well as calculated to produce these results. If such
had been the law, every conviction on an indictment not
containing that additional averment in the minor, has
been a bad verdict. But I hold the law to be fixed by
the cases in point of principle and practice.
If the view of the law I have now stated meets with
the concurrence of the Court, then, most clearly, the ob-
jection to this verdict wholly fails.
I have carefully reviewed the authorities, and I am
satisfied that this view is the sound result to be derived
from them all.
It is part of the very misconception I have adverted to,
to take the general passages descriptive of sedition, and in
the words therein employed, relative to the unlawful
purpose and spirit of the party, necessary for the crime
of sedition, to be applicable to the construction of an in-
AND CIRCUIT COURTS OF JUSTICIARY. 85
diotment framed like the present, and to the particular ^ No- 6-
'■ . * John Grant
and unnecessary averment contained in the present, over and others.
and above the averment that the language was openly and High court,
seditiously spoken, viz. that the same was intended, as lah.
well as calculated, to produce such and such results. I Conspiracy
do not so understand the passages in Hume at all. I do '"•>'"'"•
not think they have the least application to the very
special question as to this particular and specific aver-
ment, that the words were intended to produce the re-
sults mentioned.
At the same time, I am not prepared to adopt the
general description of Hume as to sedition, as of perfect
accuracy or precision, even as a general exposition of the
law. And I cannot state, consistently, the grounds of
my opinion, without meeting directly the passage founded
on. I should say that his doctrine is too unqualified and
too abstract on both sides, that it restricts too much, in
words at least, the subject's right of discussion and speech,
and in what is to be proved, requires more to be esta-
blished on the part of the prosecution than the nature of
the offence, the general principles of the law, and the
peace and welfare of society, prescribe as essential elements
of the case. He seems to put the crime of murder and
sedition on the same footing ; in that I differ ; and he does
not seem to me to draw the distinction fully between
sedition and those treasons in which a special intent is the
offence. Indeed some of his expressions seem more ap-
plicable to such treasons than to sedition.
In his chapter on Sedition, Hume refers back to the
part of his work on Leasing-making, for his explanation
of the ' general notion of the offence of sedition,' as he
terms it, that he need not further describe it ; and says,
p. 352 : — ' It is further to be observed concerning lease-
' making, that it always has relation to the King, or (if
' that is not abolished by the long disuse) to some emi-
' nent individual connected with the Court, and can only
' be committed by means of false speeches, or reproach-
' ful and contemptuous words thrown out against him,
86 CASES BEFORE THE HIGH COtJRT
No. e. * But sedition is a crime of a far wider and a more various
and Others. * description, as well as of a deeper character, and may
High Court. ' equally be committed in relation to any of the other
1848. ' ' parts of our frame of government, or to any class or
Conspiracy ' Order of our society, and though no special calumny is
& Sedition. . ejaculated against the King or any other individual, —
' as by forming combinations, taking resolutions, spread-
' ing doctrines and opinions, or, in general, pursuing any
' such course of measures and actions as tends directly to
' the resistance of the legislature or established govern-
' ment, or to the new modelling of the state without the
' authority of law. No invective, therefore, how violent
' soever, against monarchy in general — ^no abuse, the most
' outrageous, of the British Constitution — no proceedings,
' though tending ever so plainly to abolish that venerable
' system, and set up a new form of government in its
' room, — would justify the charge of leasemsiking. Be-
' cause, though involving the state and office of the King,
* as a part of the constitution, such projects are levelled
' against the whole system, and are not moved out of
' personal grudge to the prince upon the throne, but
' spring from a deeper and more malignant principle, and
' employ also more direct means and more extensive,
' than the mere slander of the character and conduct of
' the King. Thus sedition is a crime against the state,
' and holds the next place after treason, to which it is
' nearly allied, and which it very often, but by a short
' interval, precede. The other is a personal offence or
' verbal injury offered to the King, and is considered by
' the law in so much a more serious light than other
' wrongs of this class, partly on account of the peculiar
' regard it has to his peace and tranquillity, and partly
' by reason of the possible evil influence of such an ex-
' ample on the aifections and dispositions of his subjects.'
This explanation, to which Hume himself refers, as
his proper description of the offence, certainly givies no
countenance to the argument against this verdict. And
it was an occasion, in which, as he himself says, great
AND CIRCUIT COUllTS OF JUSTICIARY. §7
discrimination and precision was necessary, viz. in draw- No. b.
.,,..., , . , . , John Grant
ing the distinction between leasmg-making against the and others.
sovereign, and sedition. Whether, after the Union, any High Court,
such distinction can be recognised, or whether the in- i848. "
stances he gives of the former are not proper cases of Conspiracy
seditious libels, I need not consider. The remark as to
sedition being nearly allied to treason, and which it may
often, but by a very short interval, precede, may be correct
to the limited extent, that parties guilty of the one may be
led into the other. But if it imports, as it seems to do,
as matter of doctrine, that the two crimes are nearly
allied, in the elements, which are essential to the several
crimes, I dissent wholly from the opinion. Such con-
structive treasons as were attempted to be made out in
the case of Hardy and Tooke, were indeed allied to sedi-
tion, or rather were nothing but sedition. But the dis-
tinction between the crimes is as broad as law and reason
can make out any line of difference.
I notice this remark, because I trace the influence of
this ' notion,' that sedition is nearly allied to treason,
on the expressions and opinions which occur in the sub-
sequent part of the work. And this tendency to view
the two as so closely allied, might arise from the fact,
that the same facts had been founded on in the prosecu-
tions in Scotland for sedition, which were so strenuously
urged in England, for the conviction of Hardy and Tooke
of treason. The error is, however, a very grave one ; it
tends to make the law of treason too easy, the proof of se-
dition more difficult than law or the reason of the thing
requires. There is no alliance in the law between them,
to use Baron Hiime's expression, or rather, to use a more
correct legal expression, there is really no identity in the
essential elements of the two offences. 1. The law of
treason is wholly statutory ; of sedition it is by common
law, both in England and Scotland. 2. In treason, un-
less when war is actually levied, a certain specific intent
is of the very essence of the crime, and unless that speci-
fic intent is. proved, the general purpose of commotion,
88 CASES BEFORE THE HIGH COURT
No. 6. confusion, and a sreneral disloyal mischievous spirit, lead-
John Grant ° •' i_ tt j.v
and others, ing to most daugerous evils, is not enough. Hence trie
High Court, specific intent of the mind is, in most cases, of the essence
1848. ■ of the crime of treason. I hold this to be the turning
Conspiracy poiut of the case, and in sedition there is no such special
& Sedition. j i- ., j i
and limited law.
Baron Hume does, however, while he refers back to
his former description of sedition, as his explanation of
the general notion of the crime, go on in the chapter on
Sedition with a general sentence, not very consistent, I
admit, in expression, or, perhaps, purport, with the
passages to which he thus refers as his proper text on
the subject : He says, p. 553 : — ' I had formerly, in draw-
' ing the line between sedition and leasemaking, a pro-
' per occasion to explain the general notion of this
' offence. And I shall not now attempt any further to
' describe it (being of so various and comprehensive a
' nature) than by saying, that it reaches all those prac-
' tices, whether by deed, word, or writing, or of whatsoever
' kind, which are suited and intended to disturb the
' tranquillity of the state — for the purpose of producing
' public trouble or commotion, and moving his Majesty's
' subjects to the dislike, resistance, or subversion of the
' established government and laws, or settled frame and
' order of things.'
Now, if this is to be taken as a practical rule, accord-
ing to which indictments are to be framed, and juries to
be directed, and as referring to anything beyond the
general malice and illegal purpose, which is involved in
any man uttering seditious words without a legal excuse,
I must very distinctly say that I cannot acquiesce in that
as a correct definition of the law, or leave the protection
of society to rest on the requisites there stated as neces-
sary to constitute sedition — if the learned author meant
more than what is stated in Starkie, in a passage I shall
afterwards refer to, as to legal and technical malice or
purpose.
V But is the author consistent as an exponent of consti-
AND CIRCUIT COU&TS OF JUSTICIARY. 89
tutional law, when in the next sentence he says : — * Under No. 6.
. . 1 1 /. ,1 Jol"" Grant
' this description would fall a work, such as it has been and others.
' reserved for the wickedness of the present age to pro- High Court.
' duce, which should teach that all monarchy and heredi- 1848. '
' tary rank, or all clerical dignities and establishments of conspiracy
' religion, are an abuse and usurpation, contrary to reason * ^'^'*"'"-
' and justice; and unfit to be any longer suffered. Or,
• though the piece should not set out on so broad a prin-
' ciple as this ; if it argue, like many compositions which
' have lately been offered to the public, that the power
' of the King is overgrown, and ought at any hazard to be
' retrenched ; or that the Commons are a mere nominal
' and pretended representation of the people, and entitled
' to no manner of regard ; or that the whole state is fall
' of corruption ; and that the people ought to take the
' office of reforming it on themselves. All exhortations
' of this kind, whether any commotion follow on them or
' not (for if any do follow, it will not depend on the
' degree, fashion, and immediate occasion of that disturb-
' ance, whether it is not treason in those who partake of
' it), are undoubted acts of sedition ; being calculated and
' employed for the direct purpose of loosening the hold
' which the Government has of the opinions and affec-
' tions of the people, and thus preparing them for acts of
' resistance or aggression.'
On such publications I should say that the question
for the jury is practically very different,— are they really
abstract discussions, or are they calculated to alienate
the people of this country from their allegiance, and
to produce insurrection here, as a result clearly following
from the way the questions are treated? If so, then,
whether intended or not, it is enough that they are so
calculated — and so not very consistently the author
holds : for he even includes within the crime of sedition,
treatises, although only general, and only indirectly cal-
culated to lead to such ends.
Now I require less than his general paragraph here
requires, and much more to make out sedition, than his
90 CASES BEFORE THE HIGH COURT
No. 6. illustration states to be necessary. Every other illustra-
John Grant ^ ' .
and Others tion and case he gives, is stated in terms directly mcon-
High Court, sistent with the general passage on p. 553, if it is to be
1848. ' construed in the way the pannels contend for.
Conspiracy E^ 0. — Speakinff of the Scottish statutes which made
& Sedition. ^ „ ,.. , . , , , ,
some acts of sedition treasons, which were repealed by
the 7th Anne, c. 21, and the words of all of which are
against the strain of that passage on p. 553. He says,
p. 555 : — ' Now, each of these enactments, in its order,
' is an acknowledgment and a confirmation of the doc-
' trine of the common law ; proceeding, as they all do, on
' the notion of the wickedness of all such practices as
' tend to impugn the principles, and shake the security of
' the established government, or to draw from it the re-
' verence and aifections of the people ; and raising such
' offences from their natural rank of sedition to that of
' treason, by reason of the exigency of the times. Being
' now again lowered from that degree by the statute
' 7th Anne c. 21, which abolishes the peculiar treasons of
' the law of Scotland, these, and all other instances of
' transgression in the like sort, as mala in se, and evils,
' too, of a very high order, retain, of course, their proper
' place and quality as acts of sedition at common law ;
' whereby the offenders are justly exposed to the highest
' arbitrary punishment. On these grounds, many con vic-
' tions have of late years been obtained.' And in a note,
the case of M'Laren and Baird, among others, is quoted
as an illustration of ' these grounds'
Again — in distinguishing between a publication excit-
ing to riot, and one seditious, he says, p. 558 : — ' But if
' any one print and publish a discourse, wherein he de-
' scribes the Legislature as corrupt and incompetent to
' its functions, and advises to hold a convention of the
' people, who shall reform the government after their own
' fancy, or on a new and more popular system, proposed
' in this discourse — then is the author guilty oj real se-
' dition ; for he has taken a most matured step or mea-
• sme towards disturbing the tranquillity of the State.'
AND CmCliIT COURTS OF JUSTICIARY. 91
But that same page illustrates how much his views No. 6.
were influenced by the notion that the law of sedition and others.
and of treason were nearly allied in principle ; for he HighCoart.
says, p. 558 : — ' The crime of sedition lies, therefore, in isis, '
' the stirring of such humours as naturally tend to conspiracy
' change and commotion in the state. So near, indeed,
' is the alliance between sedition and treason;, that, if, in-
' stead of sowing the seeds of a hostile disposition to the
' government, or preparing such materials as in time may
• kindle into a flame, the offender shall seek the same ob-
' ject more immediately, by a direct and definite exhor-
' tation to the people to rise at that particular season, as
' advantageous for gaining these ends ; this measure, like
' a consultation to levy war, seems to be nothing less
' than an act of compassing the death of the King ; being
' a decided and a material step towards the doing of that,
• which cannot be done without the plain danger of the
' Sovereign's life.'
Now, on this passage I must observe, that no two
offences seem to be more directly conttasted in the
elements necessary to constitute guilt, than sedition and
treason, here said to be allied — I should say, even here
contrasted — the one consisting in the tendency to pro-
duce general disaffection, which may never lead to
actual outbreak ; the other, in the direct object or intent
of immediate insurrection. The former may be far more
mischievous ; for open treason is easily dealt with-— is
easily put down — often puts itself down, and generally
expires and burns out in the act of kindling it. But in
the latter there is direct, immediate design ; in the
former, the effect which the act is calculated to produce,
is what is 'looked to, and for that the party is justly
amenable if he has no legal object — for the effect is most
dangerous, and the speech calculated to produce that
effect, is, as Mr Clerk says, seditious. The distinction
between sedition and treason is then as broad as the ne-
cessity in the latter offence of positive design of an im--
mediate insurrection can mark any such difference.
92 CASES BEFORE THE HIGH COURT
Jota Grant ^* '^ ^^^ agreeable, nor is it often necessary, to make
and Others, these Comments on passages of any institutional writer,
HighCouit. especially of one whose authority is so great, and whose
1848. services to the law are so incomparably beyond that of
Conspiracy any Writer on any branch of the Law of Scotland, except
Lord Stair. But when we are required to lay down the
public law of the realm on matters so important to the
peace and good order of society, and in reference to the
rules which must restrain within the duty of allegiance,
the right of free speech and of constitutional agitation of
all questions in which any classes of the subjects are in-
terested, we are bound very carefully to consider the
authority quoted to us, and not to surrender our superior
and higher province of Judges to the opinions of any
private author, however eminent.
If the passage in Hume, founded on by the pannels,
really bears the construction they put on it, or rather, I
should say, is applicable practically in such questions as
the present technical point, then I am constrained, but
without any hesitation whatever, to deny that it is an
accurate exposition of law.
I shall not pursue the subject further. I will only ob-
serve, in conclusion, on this subject — that when Hume
puts murder and sedition as crimes analogous in prin-
ciple, I think he brings out very prominently the error
which pervades the general passage on sedition founded
on by the pannels. So far from holding that any
such analogy exists, so as to restrain within correspond-
ing limits the two offences, I desire to say decidedly,
that I should hold the crime of sedition in itsf analogy
or corresponding principle (if such is at all a safe prin-
ciple of judgment), to answer to the analogy of all
charges of culpable homicide, of more or less aggravated
character, as well as to, the more direct intent which is
in cases of murder, and may be also in sedition.
A party is legally answerable for the death of another,
caused by his unlawful actj, calculated to produce such
results, although he may not have intended any such
AND CIRCUIT C0UKT8 OF JUSTICIARY. 93
catastrophe, if he acted recklessly, and without regard to N"- 6.
,. /. 1 -cr 1 . . „ ., -John Grant
the safety or others. Yet he is not in all cases guilty of and others.
murder, hut of culpahle homicide. High Court.
And this is the corresponding case in analogy to sedi- uh. '
tion, if such analogies are not most unsafe grounds for Conspiracy
legal reasoning. In sedition, the effect of resistance to law-
ful authority, as an actual result to follow from the words
used, may not have been intended by the party ; but if
the language is calculated to produce that result, is sedi-
tiously uttered, contrary to the subject's allegiance, and
to the danger of the peace of the realm, I hold, without
doubt, that the crime of sedition is completed.
Still the authority of Hume cannot be used against
this verdict, except by mistaking and confounding the
question as to the general doctrine with the application
of the doctrine to our indictments.
I think the law is more corectly stated by Mr Clerk,
in the defence for Palmer, which I have already adverted
to.
Neither do I think a correct use has been made of one
passage, or rather of one word in a passage, in the charge
of my venerable, predecessor to the Jury, in the case of
M'Laren and Baird. In the first place, on turning to
the original edition of that report, from which the copy
in the state trials is printed, I do not find the least trace
that that charge was afterwards revised by his Lordship.
On the contrary, in the preface, Mr Dow, who certainly
had not attained to the accuracy of modern reporters,
not only does not state any such authority and sanction,
but apblogizes for the great difiiculty of preparing a
correct report. And the report of the charge is intro-
duced in the following somewhat apologetical manner, —
' The Lord Justice-Clerk addressed the Jury in the fol-
' lowing manner,' different from the reports of the speeches
of counsel, and certainly implying that it is but an im-
perfect report. The Lord Justice-General informs me
that he has not the slightest recollection of having revised
his speech ; that he is sure Mr Dow never applied to him
94 CASES BEFORE THE HIGH COURT
No. 6. for any such purpose, in any case at all, and, therfefore,
a^d othera. that the verbal accuracy of that report of his charge
High Court, ought not to be relied on as any expression of any advised
Nov. 25. . . »,.
1848. opinion 01 bis.
Conspiracy Then, again, Mr Jeffrey's argument as to intention, on
& Sedition, ^jj.^jj jjg ^^^^^ ^^j. ^ direction, wholly related to the
general unlawful purpose which the words wickedly and
felmiously in that indictment implied, or which ' seditious
' ly' implies in this, and did not relate to the intent to pro-
duce the exact results which the language was calculated
to produce. This, I think plain, on reading his speech,
which looks as if it had been corrected. It is to that general
doctrine, in the law of sedition, that a part of the charge is
directed. But, I own, I can the less rely on the verbal
accuracy of that report, for criminal tendency and criminal
intention are used as exactly equivalent expressions in the
sentence in question, and, therefore, in this argument, that
report really cannot give us correctly what was stated, or
clearly would be an authority against the pannel's argu-
ment.
As I read the charge, I do not think it had any refer-
ence to the special point here raised, even indirectly.
Looking to all other practical expositions of the law, I
find the law stated exactly according to my apprehension
of it. I say practical expositions, for I value a direction to
a Jury, by Judges of authority, intended to guide them, or
the collection of the law therefrom deducible in works
having direct reference to the way a Jury is to be directed,
as far more useiiil than mere general definitions of the
crime in the abstract.
I concur entirely in the way the law is stated for
practical objects, in Starkie on Libel, in the Criminal Di-
vision of his book, 2, 129, 130 ; Blasphemy, 140, 141,
147, 151-2 ; 2 Starkie, 175: By Lord Ellenborough, at
p. 177 ; again at 182-3 — which very important — as to the
distinction between the unlawful purpose and the sort of
intent which in this indictment is superadded very erro-
neously and superfluously, as to the special results which
AND CIRCUIT COURTS OF JUSTICIARY. 95
the words are calculated to produce. So Lord Holt put ^ ^°-J-
'■ ^ John Grant
the matter in a case of great note, 188." See also Lord and others.
Ellenborouffh, 193; affain p. 207 and 216. On this High Court.
^ . ° , , . , , Nov. 25.
1 observe, that there is nodistmction in principle as i848.
to the offence of sedition, whether it is committed by Conspiracy
language or by publications — very great difference, in-
deed, as to the sufficiency of the proof, as to the allow-
ance to be made for the inexperience and temperament
of the speaker — the extent of the mischief, and such like
considerations, but none as to what constitutes the of-
fence, 217.
As to intention, again, at 240, 244, 258, the passages
are most material, and directly applicable to this case.
' It is, however, important to observe, in respect of this
' class of cases, where the intention of the publisher, is
' the test of civil or of penal liability, that with a view to
' exemption from criminal as well as civil responsibility,
' the mere abstract intention of the party cannot protect
' him in the absence of facts, which constitute an occa-
* sion recognised by the law. The law allows no man
' to defend himself by saying, ' I did an act, in itself in-
" jurious, mischievous, and illegal, but I did it with an
" excellent intention.' And it must also be remarked,
' that a publication not warranted by the nature and
' exigency of the occasion, cannot be justified in a crimi-
' nal any more than a civil proceeding ; for if the occa-
* sion does not justify or excuse the act, neither, on the
' principle just adverted to, can mere abstract good in-
' tention supply a sufficient defence.'
Such is, as I understand, the purport of the proposed
definition by the Criminal Commissioners in England,
when the whole of their passage is taken : — ' Whosoever
' shall maliciously compose, print, or publish any sedi-
' tious libel, expressing or signifying any matter or mean-
' ing tending to bring into hatred or contempt the person
' of Her Majesty, or her government, or the constitution
' of the united kingdom as by law established, or both
Houses or either House of Parliament, or to excite Her
96 CASES BEFORE THE HIGH COURT
No. 6. ' Majesty's subjects to attempt the alteration of any
and othTra. * matter in Church or State as by law established, other-
High Court. ' wise than by lawful means, shall incur the penalties of
^Ts'if.' ' tlie eleventh class.' Here, the word ' intended' is equi-
Conspiracy valcut in reasoning and legal import to * wickedly and
& Sedition. , feloniously' or ' seditiously.' It is not used with refer-
ence to any intent directly to produce the precise results
which the language of the libel tends to produce. The
8th article of the same section also shows this to be their
meaning ; and the above definition distinctly comprehends
and supports this verdict as suflSicient when applied to
the indictment.
Concurring in the view of the law as thus explained,
it appears to me to be very clear, that a verdict finding
the parties guilty of sedition, in so far as that they used
language calculated to excite popular disaffection and
resistance to lawful authority, on this indictment, is a
good conviction in point of law, and that, on the motion
of Her Majesty's Advocate, sentence must be pronounced
on this verdict. But I must add, in conclusion, that it
is matter of satisfaction to me, that the Jury did leave
out the word intended, in the special way in which it was
inserted in this indictment — not only because the case is
thereby presented to us in a much less aggravated light,
but also because if I had been on the Jury, as the more
serious charge had not been proved, I believe that I
should have returned the same verdict with that which
is recorded.
LoED Mackenzie. — I concur. I think the crime of sedi-
tion is sufficiently constituted by using, whether in print-
ing, or writing, or orally, language calculated (which, of
course, means plainly calculated) to excite popular disaf-
fection, and resistance to lawful authority, provided this
be done wickedly or seditiously, i. e. without lawful jus-
tification or excuse. I do not think that to constitute
sedition, it is essential that there shall be in the delin-
quent a desire or intention to excite this disaffection and
insurrection, or resistance, provided he intends to use
AND CIKCUIT COURTS OF JUSTICIARY. 97
the words, plainly calculated to excite these, and uses No. 6.
them ; and that without justification or excuse. It seems and others.
to me clear, that this last, i. e. using the words, is enough High court.
to cause the evil of the crime, i. e. danger to the public, and "gig. '
that the want of justification or excuse is suflRcient to make conspiracy
the committer of it answerable criminally. And if such ^ Sedition.
an act be a crime at all, if it be not lawful, it can be no
other crime than sedition We never could say, that it
was a crime, but not sedition, and so not falling under
the recent statute, which limits the punishment of sedi-
tion, blit does not limit the punishment of any other
crime. Can we then hold such conduct not to be crimi-
nal at all ? I think that impossible.
Put the case, for instance, that a man, without any
justification, or excuse, prints and publishes a pamphlet,
containing words plainly calculated to excite popular
disaffection and insurrection, or resistance to lawful
authority ; and that this is proved against him ; but that
he proves, per contra, that his previous conduct was highly
and zealously loyal ; that accordingly, he had at first re-
fused to print the pamphlet, and had at last reluctantly
yielded to do it, only for a large bribe, and afterwards done
his best to counteract its effect — still he would be guilty
of sedition. True, his desire and intention would ap-
pear to be only to get money. But, with that desire
and intention, he acted without justification or excuse,
and in disregard of law, and printed and published what
was in itself manifestly dangerous to the public. He
therefore was not innocent but criminal, i. e. seditious.
Or say, that a man did the same thing, moved by
threats and fear, but not such fear as amounted to a
legal justification — he might say he had no intention to
raise disaffection, or resistance to lawful authority — but
that would not sufiiciently defend him from a charge of
sedition.
Or, say he did it only to shew his eloquence and inge-
nuity as Rousseau is said to have written against the ex-
isting institutions of society, after at first intending to
G
98 CASES BEFORE THE HIGH COURT
No. 6. display his talents on the other side, and being advised
John Grant , 7, • , „
and Others, by a fnend that the side of innovation was best for
High Court, shewing off talent.
°848. ' Or, suppose he did it only to frighten Government or
Conspiracy Parliament into some measure which he favoured, not
& Sedition, ^j-yjiy desiring or expecting actual insurrection or dis-
alFection to take place.
In all these cases, and many others that may be ima-
gined, the person must be guilty of sedition, by doing
wilfully, and without justification or excuse, an act of a
seditious tendency.
It is said, Mr Hume defines sedition to be, not only
calculated, but intended to excite disaffection and trouble
in the State. But the passage cited for the pannels has
not itself, the appearance of precise or accurate defini-
tion ; nor can I believe, that Baron Hume in it at all
contemplated the question, whether the intention to ex-
cite disaffection or trouble was essential. For if he had,
he would have followed it up by a commentary on that
branch of the definition, of which I see no appearance
whatever. On the contrary, he says, vol. i. p. 354 :• —
« The treason in all these cases is the same, in all mea-
' sures of this description, by exasperating the multi-
' tude, and infecting them with jealousy and dislike of
' the established order of the state, tend directly to a
' breach between sovereign and subject, and to fill the
' realm with trouble and dissension. To prepare which
' miserable calamity, can no more be doubted to be a
' cognoscible crime, and one too of a high deg^ree, than
' that it is a crime to partake of the very measures of
' resistance and violence, if such follow, to which these
' exhortations have induced.
' The characteristic of sedition lies in the forwarding,
' preparing, and producing such a state of things as may
' naturally issue in public trouble and commotion.
'The crime of sedition lies in the stirring of such
' humours as naturally tend to change and commotion
• in the state.'
AND CIRCUIT COURTS OF JUSTICIARY. 99
And all his reasonins; is applicable to sedition of the No. 6.
T 1 . 1 John Grant
nature i have stated. and others.
Erskine speaks iii the same way, though, no doubt he High Court.
does not sufficiently discriminate sedition from leasing- i848. '
making, (Tit. iv. B. iv. § 29.) He says, — ' Verbal sedi-' conspiracy
' tion, which in our statutes gets the name of leasing- ^ ^'^^^'°"-
' making, is inferred from the uttering of words tending
' to sedition, or the breeding of hatred and discord be-
* tween the king and his people.' He says nothing of
intention.
But our practice is what affords the most important
authority in aid of what is in itself reasonable. On that
I need not go over what your Lordship has fully treated
already.
Then, if such be the nature of sedition in our law, how
stands the present case ?
The indictment sets forth that the pannels seditiously
used language, which is rfecited, and which appears to be
very plainly in itself of a seditious nature. And then it
proceeds : — ' And the whole or part of the language
' above set forth, as used by you the said John Grant,
' Henry Ranken, and Robert Hamilton respectively as
' above libelled, was intended and calculated to excite
' popular disaffection, commotion, and violence, and
' resistance to lawful authority.'
Now here, in the view of the law I have given, the
statement of that language, and the statement that it
was used seditiously, and calculated to excite popular
disaffection:, and resistance to lawful aiithority, was itself
a sufficient charge of sedition. The statement of its be-
ing ' intended' to excite these was not essential, but in-
tensive, raesintto aggravate the charge, not to constitute it.
So stands the charge. The verdict is — (Beads verdict),
and a finding, in like terms, by a majority, is added
against the other pannel. And the jury explained, that
they omitted the word ' intended,' not meaning to find
that.
Now, I can regard this as nothing else than a finding
New York Life Ins. Co.
LAW LIBRARY,
ST. PAUL BUILDING.
100 CASES BEFORE THE man COURT
jote Grant ^^ ^^^ pannels guilty of the sedition libelled, in so far as
and Others, charged with seditiously using words calculated to excite
High Court, disaffection and resistance to lawful authority, though
Nov. 25. .11 . „ . . . ,
1848. not With the aggravation of intention to excite these.
Conspiracy And if that was, as I have said, a sufficient charge of se-
dition, the conviction of it must be a sufficient conviction
of sedition. It is a conviction of guilt and of sedition
under this libel. It implies, therefore, that the words
were used, not justifiably, or excusably, but seditiously,
calculated to excite disaffection and unlawful resistance,
and so is a conviction of legal sedition. The limitation
of the finding makes the sedition less aggravated, and
must lighten the sentence. But it cannot warrant ab-
solvitor.
The finding in this case is not ambiguous. It cannot
mean, that the pannels used the words justifiably or ex-
cusably, for then they would not have been found guilty
of sedition, or guilty at all ; but not guilty. It must
mean, that they were guilty of the sedition libelled, as
far as they used the words.
I need say nothing of the competency of a jury find-
ing part only of what is libelled. It is not disputed,
and is warranted by the ordinary style of our indict-
ments— * all which, or part thereof, being found proven,
' you ought to be punished with the pains of law,' &c.
Lord Moncreiff. — I paid all the attention in my
power to the argument on the nature and effect of this
verdict, and I have since considered very carefldly the
whole matter, and examined all the cases on the subject
as I find them variously reported.
It is undoubtedly a mitigated verdict, with reference
to the charges in the indictment. It finds the very
serious charge of conspiracy libelled not proven. It
also finds John Grant, who was indicted along with
Ranken and Hamilton, not guilty of the remaining
charge of sedition. But it finds the parties now at the
bar guilti/ of sedition in the particular terms expressed
in the verdict : — ' Unanimously find the panel Robert
AND CIRCUIT COURTS OF JUSTICIARY. 101
' Hamilton ffuilty of sedition, in so far as, that he used ^ ^°-J- ^
° J JohnGraut
* language calculated to excite popular disaffection and and othprs.
* resistance to lawful authority; and, by a majority of High Comt.
* one, find the panel Henry Ranken also guilty of i848.
* sedition, in so far as, that he used language calculated Conspiracy
* to excite popular disaffection and resistance to lawful
* authority.'
Looking at the verdict, as it 50 stands recorded, and
expressly approved of by the Jury when it was read to
them, I was of opinion, at the time, that it was a good
and effectual verdict, to make these panels stand con-
victed of the crime of sedition libelled in the major
proposition of the indictment, to a certain extent and
effect. And after attending to all the circumstances and
considerations, on which difficulties and doubts have been
raised on this, I am still of opinion that it is a good ver-
dict, on which some sentence ought to pass, as moved for
by the Public Prosecutor.
The indictment in this case libels sedition simply in
the major proposition (clearly a good form, according to
the case of Sinclair and later cases), and then, in the mi-
nor proposition, it states the facts on which these panels
were accused of having committed that crime ; and it
libels particularly, that each of the prisoners did, in the
meetings set forth, ' openly and seditiously' deliver cer-
tain speeches, some of the material words of which are
quoted in the indictment, and the whole terms or sub-
stance of which were more fully proved in evidence.
And it certainly bears, that the conduct and speeches of
the panels ' were seditious, and were intended and calcii-
' lated to excite popular disaffection, commotion, and
' violence, and resistance to lawful authority.'
The Jury have not found the prisoners simply guilty
of sedition as libelled ; and they have not found them
guilty of sedition under all the qualities expressed in
that clause of the minor proposition. But they have
found them guilty of sedition : in so far as that (with re-
ference to the particular facts laid in the indictment as
102 CASES BEFORE THE HIGH COUKT
JohnGrant *^ ^*^^' ^"*^ *^® avermeiit that what he did, he did openly
and Others, fl^fi? sedUiously) he used language ' calculated to ejecite
^if''^ 2?*' ' pop^^'^''' disaffection and resistance to lawful authority.'
1848. In this finding, they have left out the word ' intended,'
Conspiracy and left the matter to stand simply on this, that the
' language used openly and seditiously was * calculated to
" excite popular disaffection and o'egistance to lawful authc"
' rity.' The matter, therefore, stands thus ; that the Jury
have not found, and I take it, have left out e^v proposito
that word ' intended,' not being pi'epared, as I under-
stand their explanation, to find that the langua,ge was
not only calculated to produce the effect libelled, but that
it was actually intended to operate in that manner. I -do
not understand the verdict as having negatived the exist-
ence of such intention. But such intention not being
found, we can only take the verdict on that which is found.
If the jury had supposed or meant that they were finding
the prisoners not guilty, they would no doubt have said
so, as they did in the case of Grant.
Now the question appears to me to be, Whether, when
the verdict finds the parties guilty of sedition, defining
the nature and extent of that sedition, in the terms
employed, the facts set forth in those terms do or do not
by law amount to sedition ?
But if the law be, as I think it is, that, under a charge
of sedition, if the acts or speeches libelled, are in their
own nature seditious, and calculated to excite disaffection
and resistance to lawful authority, that is sedition ; and
that it is not necessary or essential to libel or to prove an
actual intention in the speakers, writers, or actors ; then
as the word intended in the indictment was not necessary
to the charge, the verdict finding the parties guilty of
sedition, in terms sufficient to satisfy the principle of law,
must be effectual as a conviction of the accused, and suf-
ficient to warrant a sentence by the Court.
I do not think it is necessary now to go through the
various ca,ses which have occurred, in the practice of the
Court on indictments for sedition, though I have made
ANt) CIRCUIT COURTS OF JUSTICIARY. 103
notes, I believe, of nearly all of them. That has been No. e.
Ill . .1 » ,, John Grant
already done, in my judgment, very fully and effectually, and other?.
The indictments do in general bear, as all indictments High court.
Nov. 25.
do, that the things charged were done wickedly and fe- 1848.
loniouslt/, or, in the particular case of sedition, sometimes Conspiracy
openly and seditiously, vrhich has been found relevant in
the present case, as well as in other cases ; and in a few
instances the word intended, or some similar word, has
been applied to the character of the speeches or writings
libelled. But in thei general course of such indictments,
the terms most commonly used, are ' calculated,' or
' tending,' or some such word, applied to the words or
writings specified. Sometimes the words are ' of a se-
' ditious tendency' or ' ohviously calculated to stir up a
' spirit of disaffection,' &c. Sometimes writing and print-
ing a seditious pamphlet ' calculated to degrade and to
* bring into contempt our present happy system of go-
' vernment,' &c. ; sometimes (as in M'Laren and Baird)
' wickedly and feloniously deliver a speech containing a
' number of seditious and inflammatory remarks and asser-
' tions CALCULATED to degraded 'and bring into contempt
' the government and legislature, and to withdraw there-
' from the confidence and affection of the people, and fill
' the realm with trouble and dissension.'
I gather from all the cases, that the essence of the
crime of sedition consists in the cJiaracter and plain mean-
ing and import of the words spoken or written, as being
calculated or as tending to excite disaffection, to bring
the laws and constitution into contempt, or to excite to
resistance to lawful authority. And when this is clear in
any particular case, provided the words had been deliberate-
ly and by the free will of the party spoken or written, the
crime of sedition has been committed. No doubt, there
must be intention to this effect, that the party did intend
to spedk or to write i\\e things laid to his charge, bearing
the character of being so calculated to excite disaffection.
And if the words do not in their natural and obvious
meaning import that which is alleged, it may sometimes
104 CASES BEFORE THE HIGH COURT
No. 6. be necessary to assign and to prove an entirely different
and Others, meaning as attached to the words, — as in the case of
High Court. Daniel Isaac Eaton, in which it was alleged that King
1848. George the third was represented under the figure of a
Conspiracy game cock. But whcre the meaning and import of the
" words is not at all in dispute, the only question is, after
it has been proved that they werp used advisedly by the
parties, whether they are of the seditious import libelled,
in so far as they are calculated or have a tendency to ex-
cite disaffection and resistance to lawful authority.
Without thinking it necessary to go into further
detail, after the full explaijation already given, I would
only say, that my attention has been most particularly
fixed on the whole proceedings which took place in the
remarkable case of Robertson and Berry, who were tried
in March 1 793, on an indictment charging them with
the crime of sedition, in so far as they were guilty of
printing and publishing a seditious pamphlet, ' containing
' false, wicked, and seditious assertions, calculated to de-
' grade and bring into contempt our present happy system
' of government, and withdraw therefrom the confidence
' and affection of our subjects.' They were charged with
wickedly and seditiously printing and publishing the
pamphlet so designated. Upon that charge, a verdict
was returned, by which the jury, ' all in one voice find it
' proven that the said James Robertson did print and
' publish, and that the said Walter Berry did publish only
' the pamphlet libelled on.' That was a special verdict,
as the verdict in the present case is. It did not find
either of the prisoners guilty of sedition as libelled, or of
the crime libelled, but it found, in specific terms, a certain
thing as to each of the prisoners, without one word as to
the intention of either of them, and not saying specially
that they did those things wickedly and feloniously, or
with any such quality. This is the more important, be-
cause it gave rise to a great deal of discussion, in which
the accused had the aid of the very eminent counsel, Mr
Wight, and Dean of Faculty the Honourable Henry
AND CIRCUIT COURTS OF JUSTICIARY. 105
Erskine ; and after long argument, and after taking time No. e.
to consider, the Court were unanimous, that the verdict and others.
was effectual as to Robertson ; but they were divided in High Court.
Nov. 25.
opinion on the case of Berry. Yet it was decided by a 1 848.
majority {Eskgrove, Abercrombi/, Justice-Clerk Brawfield Conspiracy
against Henderland and Dunsinnan) that it was a good
verdict as to Berry also. The objection was precisely
that the verdict did not find the intention. But it was
decidedly held that that was not necessary.
And, indeed, if it were necessary that that should be
specially found by the jury, wherever they do not find a
simple verdict of guilty as libelled, it would be difficult
to see how any man should be found guilty, upon the act
of printing or publishing the most seditious and inflam-
matory libel which can be supposed. And yet I take it
it to be clear law, that every man is answerable to the
law for what he prints and publishes to the world of a
seditious tetidency. He may sometimes prove a case, to
relieve himself wholly or partially. But in the absence
of all such proof, the case is clear on the act done.
I do also think it very striking, that in that very able
address which Mr John Clerk, whose zeal for the interest
of his clients, as well as for the liberty of the subject, and
whose great knowledge of law, and extraordinary acute-
ness of discrimination, never were exceeded in any bar,
made for Mr Fysche Palmer, he nowhere maintained (and
neither did even Mr John Haggart, in objecting to the re-
velancy of the indictment) that the jury must be satisfied .
of the actual intention of Mr Palmer in the matter. But,
on the contrary, Mr Clerk says, in emphatic terms, ' To
' render a writing seditious, it must be intended or calcu-
' lated to urge the people to actual violence ;' and the
charge of Lord Abercromby in that case was entirely on
the question, whether the paper was of a seditious import
or tendency, and whether Palmer was the writer or art
and part in writing, printing, and publishing it.
In connection with that case, and as very important in
the question, I beg leave further to observe, that in all
106 CASES BEKOllE THE HIGH COURT
John Grant *^® indictmeiits to which I have been alluding, there is
and Others, ■yyhat used to be Called the 'at least' clause, on which
H^g^Court. the accused might be found guilty as art and part, though
1848.' not proved to be the direct author or actor in the writing,
Conspiracy printing, or publishing. And so the verdict in the case
& Sedition. ^. _ , ^ ° . i . i i-i i i
of Palmer finds ' the address mentioned m the libel to be
' a seditious writing, tending to mflame the minds of the
' people : Find that the panel was art and part guilty in
' writing the said address, and that he is guilty of causing
' the said address to be printed, and that he is guilty of
' distributing, and causing to be distributed, the said sedi-
' tious and'inflammatory writing.^ This is another example
of a special verdict, bearing not a word o/'intjention and an
important part of it depending on the at least clause, in
which no intention is set forth, except what might be im-
plied in the nature of the writing itself.
I shall not go farther into this matter, excepting only
to observe, with all manner of diffidence, that, as far as I
am informed, it would be quite clear in England that, if
the libel set forth in the indictment ov information is in its
nature seditious, it is not material whether an actual in-
tention be found or not. Thus, Lord EUenborough said,
in the case of the King against Oobbet, ' that if a publi-
' cation be calculated to alienate the affections of the
' people, by bringing the government into disesteem, whe-
' ther the expedient resorted to be ridicule or obloquy,
' the writer, publisher, Sec, are punishable; and whether
. ' the defendant really intended by his publication to alienate
' the affections of the people from the government or not, is
' NOT MATERIAL. If the publication be calculated to have
' that effect, it is a seditious libel.' And see Ilea:^ v. Bur-
detf, &c.
I am therefore of opinion, that, in this case, the verdict
is sufficient, to infer a sentence as for sedition. But, as
I have said before, it is a verdict finding the prisoners
guilty of a charge of sedition considerably mitigated.
Lord Medwyn. — The indictment in this case contains
a distinct charge of sedition, and the Jury have found.
AND CIRCUIT COURTS OF JUSTICIARY. 107
by their verdict, that the two pannels are guilty of • se- No. 6.
T • • n 1 11, 11 -John Grant
' dition, m so tar as, that they used language calculated and others.
' to excite popular disaffection, and resistance to lawful High Court.
. . Nov. 25.
' authority.' This was in answer to the facts constitu- iius.
tive of the charge, that they openly and seditiously used conspiracy
the language there set forth. This is a distinct finding of
the offence charged ; and in the explanation which oc-
curred with the Jury when they returned their verdict,
they pointedly told us that it was their meaning to find
them guilty of sedition, in so far as they did what is there
expressed. Now, is there anything which neutralizes
or nullifies this distinct finding ? nothing certainly in the
verdict, for it contains nothing more than the words al-
ready quoted ; but it is said that the charge which the
Jury had to try was, whether language was used, ' in-
' tended and calculated to excite disaffection,' and that
the Jury have not found anything with regard to the
intention of the speakers, and as the Jury explained to
the Court, this was not an oversight, but omitted ea^
proposito •■ then, it is argued, that the intention to ex-
cite disaffection not being found, but the reverse inferred,
that this verdict does not support the charge and the
crime of sedition, although the Jury may have thought
that what they found was sufficient to do so. No doubt
there is some difficulty here, and a good deal of plausi-
bility in the objection, but after some wavering in my
opinion, I have now come back to my original impres-
sion, that the objection cannot be sustained. The doubt
in my mind arose from the description of the crime of
sedition given by Baron Hume, ' that it reaches all prac-
' tices which are suited and intended to disturb the tran-
' quillity of the State,' and the sanction which seemed to
be given to this statement by the present indictment, as if
it was a necessary element in the charge that the words
openly and seditiously spoken were intended as well as
calculated to excite disaffection, so as to call upon the
Jury expressly to find the intent as well as the fact of ut-
tering seditious expressions. But I am now satisfied that
108 CASES BEFORE THE HIGH COURT
No. 6. the crime of sedition requires neither the intent to be set
John Grant „,.,,,. , /. iij.it
and Others, forth in the indictment, nor to be found by the Jury.
High Court. It is not one of those offences where we look to the in-
■^Tis.^" tent so much as to the consequences, or the effects pro-
CoDspiracy duced, or calculated to be produced, by the words ut-
& Sedition. jgj.gj^ ^^^ meaning of which is plain. It is the danger
to the tranquillity of the State from seditious harangues
addressed to a multitude of people, rather than to the
intention of the speaker, that the law looks to. Some
crimes consist in intent, and then this must be specially
set forth in the charge, and must be found by the Jury.
That branch of the law of treason which consists in com-
passing and imagining the death of the king, rests on
the intent, and the overt acts are only to prove this in-
tent. The intent must be charged and must be found.
In a more ordinary department of law, there may be a
charge to stab any one, with intent to murder, rob, or
maim, or disfigure ; there the essence of the crime is the
intent. But sedition is not a crime of this character :
its essence is using seditious language, calculated to ex-
cite disaffection in the minds of the hearers. Accord-
ingly, indictments have been well laid, and held relevant,
without any thing about intention being stated in them.
Indeed, I do not know that an indictment for sedition
was ever objected to, because nothing was said as to the
intention of the speaker, but only the tendency of his
language stated. Thus, in the case of Morton Sf Others,
in 1793, the charge was, that they were guilty of sedi-
tion, by uttering seditious speeches, tending to excite a
spirit of disloyalty and disaffection to the king and esta-
blished government. I think, in all the many cases for
sedition tried at that time, the same phraseology was
adopted. In the case oi Be'try and Robertson, the state-
ment was, it was calculated to degrade and bring into
contempt the Government : in Fysche Palmer, the same
term is used, and in Skirving's, and in others. We must
never forget that these prosecutions were conducted by
the able Crown counsel of the day, including Solicitor-
AND CIRCUIT COURTS OF JUSTICIARY, 109
General Blair and Mr Burnett, and the pannels were j^hn Grant
often defended by the greatest lawyers at the Bar, in- and others.
eluding Mr Wight, Mr Clerk, and Mr Gillies among High Court,
others. Again, at a later period, in the case of M'Laren i848.
and Baird, in 1817, sedition was charged, in so far as Conspiracy
1 111, 1 7- 1 • 1 & Sedition.
the pannels had spoken words tending to bring the go-
vernment and legislature into contempt. The eminent
counsel who defended the accused, distinctly admitted
that this was a relevant charge of sedition ; that it was
not necessary specifically to set forth intention in the
charge, and on this they were convicted and punished.
One cannot, however, wonder that an express assertion
of intention in a charge of using seditious language,
especially to an unlawful assembly, should be introduced
into an indictment as an important aggravation of the
charge, as was done in some portions of the indictment in
Muir's case ; for, when any one at a large public meeting
of the lower classes, addresses them in inflammatory lan-
guage, as men unjustly oppressed by their rulers, and incit-
ing them to redress their wrongs, and to provide guns and
bayonets, for the purpose of resistance, it must be pre-
sumed that the speaker intends that his views should be
adopted, and his advice followed : it is the only suppo-
sable motive for his having addressed such language to
such an audience. The intention is, in short, implied
in the mere use of the words, and proved by it. If
the accused can shew that he had no such motive,
but a different one, and that an innocent one, not
plainly calculated to create dissatisfaction, this may
possibly be a defence for him, and save him from
what the law implies in his having seditiously uttered
words calculated to excite disaffection. But it will not
do merely to allege and prove another motive than the
intention to excite dissaffection — it must be some inno-
cent motive, and not calculated to have any other than
the intended effect, if such can be found ; such only would
justify his conduct. For instance, suppose this case, — a
very improbable one, no doubt, — that a speaker, vain of
110 CASES BEFORE THE HIGH COURT
John Gran ^^® oratory, conceited enough to think he could regulate
and others, and rcstraiu the feelings and conduct of a mob, should,
High Court, with no other motive but a display of his oratorical
1848.' powers, and speaking even against his own feelings and
Conspiracy convlctious, addrcss a public meeting, and use sedi-
tious language to them, surely this would be sedition for
which the speaker would be responsible, as calculated to
excite disaffection, although he had not the most remote
intention that this should be the effect of his oratory.
Again, suppose a hired orator were procured for the pur-
pose : would his having no other intention in what he did,
except to pocket the sum for which he had undertaken
the task, be any defence to him ? If any one uses in-
flammatory language to an excitable crowd of people,
though without the most remote intention to excite
them, he must be responsible for seditioui just as much
as a man will be answerable to the law, if he fires a pis-
tol in a street and some one is injured by the shot, al-
though he had not the slightest intention of injuring any
one, and did not even observe any one in the way. The
act was calculated to do mischief, and it has done mis-
chief. He ought to have been aware of such a possi-
bility, and is held to be guilty, because he did not attend
to this. So also, the seditious speaker cannot be al-
lowed to use inflammatory language to a mob, and say
he had no intentioh to excite them. I think it clear,
then, that the charge would have been good without
stating that the seditious words were intended, and that it
is sufficient if calculated, to produce the efiect stated. A
jiu-y need not find all the facts and circumstances stated
in the minor, provided they find what are sufficient to
support the charge in the major, and I think this is
amply done here. The terms of the verdict shew that
it was a well considered one ; while they do not find any
thing as to intention, observe they do not even find that
the words used were calculated to excite ' commotion
' and violence,' which is also in the charge, plainly
meaning to characterize the sedition which they do find
AND CIRCUIT COURTS OF JUSTICIARY. Ill
proxted, as of a less dangerous kind than if they had No. 6.
„,,,,,, . ^ . T, , , n 1 John Grant
found the whole allegation ; in like manner they only nnd and others,
it calculated to excite popular disaifection and resistance High Court.
to lawful authority, and I think that they declined to find \sis.
any thing as to intention with the same view : they held conspiracy
this to be an aggravation of the offence of which they ^ ^^'^'''o"-
found the paimels guilty, as the other would have been
also, and omitted it with the same view of lowering the
character of the sedition, for which they held the pannels
must be answerable. The omission of any finding as to
intention, does not then nullify, but only characterises,
the sedition, which is expressly and substantively found.
Lord Cockburn. — I have no idea of a crime without
guilt in the mind of the criminal. No crime can be
committed by any mere act, abstracted from all consi-
deration of motive. Actus non facit reum nisi mens sit
rea. In the great majority of cases, the mental crimi-
nality consists in the intention to do the particular thing
charged ; and hence the wickedness of that intention is
commonly, though perhaps loosely, given as descriptive
of the only sort of guilt, that exists. But it is not to the
precise case of a deliberate intention to commit the exact
crime, that the principle can even be meant to be ap-
plied. One crime may obviously be committed while
another was meant ; there may be criminality in a good
motive, such as in the love of applause or of gain ; and
there may be a culpable indifference to consequences,
which implies wickedness, and is itself a crime. What
the principle means, is, that there must be mains animus.
But there are so few cases in which this animus means
anything except guilty intention, that this last expression
is usually given as denoting the general meaning. The
inward guilt, whatever it may be, may be inferred from
the tendency of the act, but it is never in the mere ten-
dency, apart from malus. animus, that the guilt consists.
There is no case to which this principle applies so
strongly as to sedition. And this for a plain reason. In
a country like this, where everything public is managed
112 CASES BEFORE THE HIGH COURT
No. 6. by free discussion, and the free action of parties, opinions
and others, and projects are propounded daily by one set of people
High Court, as uecessary for the immediate maintenance of autho-
"i848.^' rity, which are denounced by other sets as involving its
Conspiracy immediate prostration. Upon vital questions there are
& Sedition. £g^ honest politicians, or conscientious sectarians, who
do not think their opponents views dangerous. It is the
fact of their being supposed to be dangerous that makes
the schism. If, in such a state of things, the mere con-
viction by one party that what his adversary wished, led
to disorder and trouble, justified a conviction of sedition,
it would just depend on who the jury were, whether an
accused person was guilty or innocent. How many pub-
lic measures and principles have been advocated within
these twenty years, as to which one faction has honestly
thought, not merely that the general expediency, but
that the direct and instant tendency to disaffection and
insubordination, lay one way, and another faction that
it lay in the opposite way. If it depends merely on the
tendency of the schemes, principles, or language, most
ardent party men are necessarily seditious in the sight
of their opponents. But the law interposes between all
parties, and saves every man against whom neither cri-
minality of design, nor a blameful disregard of results,
can be proved. This principle gives no protection to the
wilful, though conscientious despiser of the law ; because
his case includes the general intention to violate the law,
which implies wickedness of design.
Accordingly, I know nothing that is more unequiro-
cally laid down by all authorities, or more deeply im-
plied in all sedition trials, than that the guilt of sedition
is not contracted, where the intention, — in the sense in
which I use this expression, — was innocent. This, as I
read them, is the doctrine of all institutional writers, of
all courts, and of all public prosecutors since the Revo-
lution. It is so necessary for the practical exercise of
the constitutional privilege of free discussion, that it is
one of the principles of which the law is proud.
AND CIRCUIT COURTS OP JUSTICIARY. 113
T have been surprised to be told, that this principle is No. e
I'll p T-i 1 1 T 1 ^• T . John Grant
not recognised in the law oi Jiingland. I believe that it and others,
is. And I believe this with as much confidence as it is High Court.
ever proper to feel in regard to anything in another isis. '
legal system, and that is contested. There is no subject Conspiraty
on which English light could be more relevantly bor- ^ ^®'*'*'°"-
rowed ; and therefore, since we differ about the law of
that country, I wish that we had protected ourselves
by taking the usual course for having it ascertained.
The only conclusion that I can form without this aid, is,
there can be no sedition there without some direct or
indirect guiltiness of intention. Hence, every English
indictment for this offence sets forth (as I understand)
that the words were spoken wickedly and maliciously ;
or charges the specific fact that the mischief expressed
by them was intended. Or, they are sometimes said to
have been used seditiously, — which includes everything
necessary for the composition of the offence, and among
other things wickedness of design. The term suggested
by the Criminal Law Commissioners, — who, I respect as
most sagacious and enlightened expounders both of what
the law is, and of what it ought to be,-^ — is malicious.
But the precise term is immaterial. In one way or
other a charge of criminal design, or of criminal indiffer-
ence, is expressed in all charges for sedition ; and I sus-
pect that no example can be exhibited of judgment fol-
lowing on any verdict which excluded this quality.
I am perfectly aware of the cases and passages in
which it is said that the use of words of a dangerous
tendency is sufficient ; but, I think that these authorities
are misunderstood. All that I understand them to
mean is, that atrocity of language is, of itself, competent
evidence of the intention, or of the wickedness of its
user ; and that, if not rebutted^ it is conclusive evidence.
This I agree with. But, instead of implying that the
intention is immaterial, it implies exactly the reverse.
It implies that it is material, but that it may be estab-
H
& Sedition.
114 CASES BEFORE THE HIGH COURT
No. 6. lished by a particular sort of proof. All the length that
fndotos. Chief- Justice Best goes, in the case of Burdett, is,_that
HighCourt. ' It is enough if it (the criminal intention) be highly
^1848*" ' probable ; particularly if the opposite party has it in
conspiracy ' his power to rcbut it by evidence, yet offers none ; for
then we have something like an admission that the
' presumption is just.' Mr Justice Bayley says, in Har-
vey's case, ' I take the law to be, that where a particu-
' lar consequence necessarily results from any act, the
' , party doing that act is to be held, prima facie, as in-
' tending the necessary consequences of that act.' No
doubt. But still (in the first place) this only means
that the act, if unexplained, is good evidence of the in-
tention ; and (in the second place), this is a presumption
to be judged of hy the jury. If the intention had not
been deemed a part of the offence, what occasion had
these learned persons to speak of it ? They had simply
to say that the dangerousness of the language being as-
certained, the enquiry was over. I should like to see
what an English court ever did with a case where the
jury, after condemning the words, instead of drawing
the inference of guilty intention, acquitted the prisoner
of this part of the charge.
However, I do not believe that any of us are safe in
groping oiu- own way, by our own threads, through the
intricacies of any foreign system. We are more in the
open air with oiu* own law. As to which, had it not
been for the state ol the court on the present occasion,
I should not have had the very shadow of a doubt.
In considering the punishment that ought to be in-
flicted on Joseph Gerald, in 1794, two Judges take occa-
sion to dispose of the alleged purity of his intentions.
One of their Lordships says, that perfect innocence of in-
tention is not a ground even for mitigation of punishment ;
and the others goes the length of holding this circum-
stance as a positive aggravation. These are the only two
passages in the legal proceedings of Scotland that I am
waare of, where intention has been struck out as an
AND CIRCUIT COURTS OF JUSTICIARY. 115
element of sedition. I do not suppose that they will be No. 6.
. , . - . ^^ "^ John Grant
copied m modern times. and others.
Baron Hume was engaged, I believe, in the composi- High Court-
tion of his work while these old proceedings were going on. "sis. '
But instead of seeing anything of this kind in them, the conspiracy
principle which he extracts from them is, that it requires * ^^^'*"'°'
a combination of intention with tendency to constitute
the offence. ' The offence reaches all the practices, &c.
' which are suited and intended to disturb the tranquillity
' of the state.' These are the deliberate words of a
cautious writer, giving to posterity the lesson furnished
by recent proceedings, and I see no abandonment, or
abatement, of the doctrine in any other part of his Com-
mentaries.
Burnet was professionally engaged for the prosecution
in almost all these cases, and all his feelings were on
that side. Yet, when he comes to describe them as an
institutional instructor, he too holds them to import
evil intention as indispensable. After giving examples
of seditious words, he adds, that they are seditious, ' If
' such invectives are uttered and published in such a
' form as is calculated to excite the people to violence
' and tumult, and proceed obviously from that intent.''
In the case of Baird and Maclaren, bad intention was
not charged by the use of this expression ; nevertheless,
the words were said to have been employed wickedly,
and the Lord Justice-Clerh (Boyle) instructed the Jury
that ' criminal intent is of the very essence of the crime.'
I do not rely merely on these detached expressions, but
on the whole scope, and object, and spirit of the charge.
It relates to little else than to the sufficiency or insuf-
ficiency of the evidence of the moral criminality of the
accused.
I cannot abandon authorities so express, and that co-
incide so correctly with the general principle. But I
rest less even on these authorities than on the undeyiating
authority of our libels. I have not observed a single one
where wickedness of mind in the accused has not been
116 CASES BEFORE THE HIGH COURT
No. 6. charged. No matter how it is meant to be proved, it has
and Others, always heeo-charged. No doubt the charges have not always
High Court, been made in oneway ; nor is this necessary. It has some-
1848. ' times been made by setting forth that the language ' was
Conspiracy. Calculated and ' intended' to effect a certain species of mis-
& Sedition gjjjg£ ^j. Q|.jjgj. ^jj^gg j^ jjg^g ijegjj jjiade by saying it was
done, wickedly and feloniously.' But, whatever the form
has been, my statement after all I have heard to-day, is,
that not one sustained indictment has been, or can he, refer-
red to, where nothing was charged beyond the bare fact that
dangerous words were published. It seems to be thought
that the imputation of its being wickedly and feloniously
meant is immaterial ; and this merely because it is com-
mon. These are called words of style. And so they are ;
just because they are so necessary that they are never
omitted. I cannot hold words in a criminal charge to
have no meaning.
Accordingly, what is it that the greater part of all trials
for sedition are about ? According to the prosecutor's
view, most of them ought to be at an end as soon as the
import of the words is settled. But the struggle of
almost all such trials is, to establish, or to refiite, the
imputation of the prisoner's guilty mind, as a thing not
necessarily involved in the mere tendency of his act. If
what I have heard in this discussion be sound, nearly the
whole evidence, the whole labour, and the whole elo-
quence of such proceedings might have been saved, and
indeed of this very case.
But really the whole of this discussion is superseded
by the special terms of the particular libel before us.
Whatever it might have done withouit, it does contain
not only the general cliarge of wickedness, but a specifi-
cation of what the wickedness consisted in, viz. an inten-
tion to produce disaffection and disorder. This is the
case that these prisoners were warned to meet. This,
alone, is the accusation that was found relevant. The
use of these words shows what the prosecutor understood
to be necessary. And certainly the intentioa thus in-
AND CIRCUIT COURTS OF JUSTICIARY. 117
troduced, as descriptive of what the general imputation No^^.
of wickedness meant, into the libel, was not left out of and others,
the trial. I was not present ; but the communication HighComt.
between the Court and the Jury implies that the inten- i848. "
tion had been discussed, and was meant to be dealt with Conspiracy
by the assize as a matter of relevancy and importance.
Yet the substance of the prosecutor's argument now is,
that this was entirely immaterial, and need not have
been in the case at all.
If it be true that wickedness, particularly of intention,
is no necessary part of the legal crime, then it must be
true that an indictment, or a verdict, may be good, though
this part of the charge or of the conviction be left out.
Anything may be omitted that is useless. And, if it may
be omitted at all, it may be omitted purposely and openly.
Now, suppose an indictment to set forth, or a verdict to
find, or a prisoner to plead, that the publication was cal-
culated to provoke disaffection, but that he did not mean
this, and that this being the only criminal object charged,
he had no criminal feeling whatever. I do not believe
that such an indictment, or verdict, or plea, would be
thought sufficient.
Assuming, therefore, that guiltiness, and in this case
guiltinesss of intention, is essential to the offence, and
that, though proveable by the mere force of the words,
it is the Jury that must find it proved, the question is,
whether they have done so here. This brings us to the
construction of the verdict.
No verdict ought ever to be strained in order to give
it a meaning which it does not plainly express ; least of
all should it ever be strained against a prisoner. On
the contrary, every possible benefit ought to be given to
a prisoner that the words admit of. In particular,
wherever a circumstance, essential for his conviction, is
not found, he is entitled to have the verdict considered
as a verdict of acquital.
The verdict before us does not find the prisoners
simply guilty ; nor guilty as libelled ; nor guilty simply of
118 CASES BEFORE THE HIGH COURT
No. 6. sedition. Any of these would have done, because under
and others, these general terms would have been included whatever
High Court, was in the charges. The words 'guilty of sedition^ no
18*48. ' doubt, are in the verdict ; and a great portion of the
Conspiracy rcasoning I have heard seems to me to imply that no
& Sedition, ot^gj. ^yords are to be cared for. But I cannot stop there.
Because the finding of guilty of sedition is connected
with an explanation, or rather with a limitation ; and I
must take this into view also.
The prisoners were not charged with the abstract use
of improper language. They were charged with using
this language wickedly ; and the species of wickedness
was described as consisting of an intention to produce
the mischief for which the words were calculated. Now,
the jury find them guilty of the abstract fact but not of
the guilty quality. They find each guilty of sedition,
' In so far as that he used language calculated to ex-
' cite popular dissaffection and resistance to lawful au-
' thority.' A lunatic might have done this. As I read
this, it means, when legally construed, that they are ac-
quitted of everything else, particularly of all malus ani-
mus. They are guilty in so far. In so far as what ?
As that they used words of a specified tendency. This is
not a virtual, but a positive exclusion of everything
charged, but not found ; and among other things, it is
an exclusion not only of the wicked intention with which
the words were connected in the accusation ; but of all
the other guilt, if there be any, in the indictment. It
does not appear to me that the verdict would have been
at all more favourable for the prisoners if it had, in ex-
press terms, found the prisoners not guilty of those parts
of the libel which imputed wickedness or intended mis-
chief to them. It is in vain to refer to the words as
proving the guilt, because admitting, as I do, both the
competency and the sufficiency of this proof, it was the
province of the juj-y alone to apply it, and this they have
not done. We have no right to speculate about their
probable meaning. I think I can ascribe the first part
AND CIRCUIT COURTS OF JUSTICIARY. IIQ
of tlieir verdict to a rational ground enough, consistent- jo^°|j^t
ly with an , intention in the second part to acquit the and others.
prisoners. But if they really meant to convict, I have High Court,
great difficulty in conceiving how they could limit the i848.
conviction to the bare use of the words. Looking there- Conspiracy
fore at the terms of the verdict, I hold it to contain a
finding of guilty of sedition, — with a limitation which, in
l&w, makes no sedition. It seems to come very near the
celebrated English case, where the jury were satisfied
that the words had been published (no matter whether
by speaking or by printing), but were not satisfied about
anything else, and therefore found the prisoner guilty
' oipvblishing only? No sentence followed on this ver-
dict. The correct translation of the present verdict is,
' Find the prisoners guilty of whatever sedition there is
' in the mere use of dangerous language, but acquit them
' of personal blame.' In short, we condemn the language,
but not the men ; at least, whatever we may think of
their intemperance, we do not think them seditious, un-
less the mere uttering of the words constitutes sedition. The
bare utterance might, as evidence, have warranted the
Jury in inferring malm animus ; but they not having in-
ferred this, but having restricted their finding to the
abstract fact of the use of the words, the Court has no
right to make the inference for them.
But we are not now entitled to confine our attention
merely to the terms of the verdict. Whether the com-
munication that took place between, the Jury and the
Court ought io have been introduced as connected with
the verdict, I do not say. But it was introduced ; au-
thoritatively, on the motion of the prisoner, and without
objection by the Prosecutor. Its import was that, on
its being put to them, the Jury stated that they unani-
mously meant to leave "the word intended out of their
verdict. I hold the meaning of this to be, that they
meant to acquit ; or not to convict, of wickedness of
intention.
Now, what is the substance of the prosecutor's claim ?
120 CASES BEFORE THE HIGH COURT
t ^°n^' . It is, that wickedness of intention is to be inferred from
John Grant •
and Others, the use of the language ; and that, therefore, though the
High Court. Jury has not only not drawn, but has unanimously dis-
1848. ' claimed the inference, still this very inference is to be ex-
Conspiracy tractcd, by ingcnious interpretation, out of the very words
" ' '""■ by which the disclamation was followed. I do not presume
to dictate, or to suggest, to any one else ; but, for my-
self, I must say that I recoil from this construction. I
could not go into it without a consciousness that I was
absolutely reversing what it was judicially explained
that the Jury intended. It is this feeling that makes the
whole discussion to me so painful. I think that we are
not giving effect to that of which the Jury unquestion-
ably meant to acquit ; and that we abstain from doing
so, by an interpretation, which is at the least not neces-
sary, of the very words which the Court took from the
Jury as consistent with that acquittal.
It may possibly result in there having been a miscar-
riage at the trial. But this is a misfortune of which
the prisoners are entitled to the benefit.
LoBD Wood. — ^The opinion I had formed,* upon con-
sidering the argument which was submitted to us, and
the authorities cited, was-^that the verdict is good ; and
I am confirmed in it by those delivered by your Lord-
ships, who have taken the same view.
After the whole subject has been so fully exhausted,
it could serve no purposCj and indeed would only be a
useless consumption of time to go over it again in detail.
I shall therefore only say, that when I consider the charge
of sedition in the indictment, which is now alone in ques-
tion,-'— the manner in which it is there laid, all the acts
and conduct libelled being averred to have been done and
uttered seditiously, — and the law and practice relative to
the offence, and to the form and style of the libel, of
which there are numerous instances where no special in-
tention is set forth, — and when, "with reference to these
things, I read the verdict as it stands — but giving, at the
same time the utmost effect to which, as I think, the ex-
AND CIRCUIT COURTS OP JUSTICIARY. 121
planation accompanyinar it is entitled, and after which No- s.
explanation the verdict as it is worded was deliberately and others.
adhered to, — I am of opinion that it is a good and unob- High Court.
jectionable verdict of guilty of sedition ; that is, guilty of isis. '
the acts of sedition libelled, to the extent mentioned in Conspiracy
the verdict, although the verdict omits to find a part of
what is libelled, viz., the special intention libelled, which,
I apprehend, has only an intensive meaning, and is laid
merely as descriptive of one specific quality of the crime
charged, but not as an essential element in the crime,
which by law it does not require to be, and which spe-
cific intention, therefore, it was not necessary to establish
by proof, or consequently to have found by the verdict of
the jury, in order to render the verdict suflScient to war-
rant a sentence being competently and effectually passed
upon it.
Thereafter Lords Mackenzie, Cockburn, and Wood,
withdrew, leaving the Lords Justice-Clerk, Moncreiff,
and Medwyn, before whom the case had been tried, to
pronounce sentence.
Lord Moncreiff. — My Lords, I am happy to have it
to Siay, that, having sat on this Criminal Bench for nine-
teen years, I have not been called on to take any part in
a trial of sedition until this time. But the case has oc-
curred now ; and it is impossible, in the circumstances
under which this indictment was framed, not to see that
there was an absolute necessity laid on the authorities to
bring the matter under the consideration of the Court,
considering that the indictment contained very serious
charges against the prisoners. The charge of conspiracy,
in the terms libelled, is of a very serious character. It
has, however, fortunately for the prisoners at the bar, ac-
cording to the view of the case I take, turned out that
the charge of conspiracy has not been proved against
them ; and, that being the case, it is laid aside. But we
come to the charge of sedition ; and the Jury have found
the prisoners guilty of sedition in the particular terms
122 CASES BEFORE THE HIGH COURT
John Gr' ®^PJ"^ssed in their verdict. No doubt, unquestionably,
and Others, the finding them guilty of that charge of sedition, even
H^s'' Court, in the modified terms in which it appears, implies a cer-
1848. tain criminal intention, the intention of speaking these
Conspiracy words, which, in the opinion of the Court and the Jury,
& Sedition. .
are seditious ; and, without going into any of the particu-
lars, I must say, that it is impossible for any man to read,
these speeches, and particularly to read the whole of them
as given to the Jury, it is impossible, I say, for any man
of sober and calm mind, looking to the interests of the
country, not to see that they are seditious in the charac-
ter which the Jury have given them, namely, that they
were calculated to excite popular disaffection to the Go-
vernment, and to excite resistance to the lawful autho-
rities. If they had any meaning at all, they have that
meaning and import. I am not speaking of the inten-
tion of the parties, but certainly they have that character
and import, as has been found by the Jury. It would be
a sad matter indeed, if the delivery of such speeches, in
Ifirge assemblies of persons, one of these assemblies in a
room consisting of six, seven, or eight hundred persons,
and another in the open field of Bruntsfield Links, where
some thousands were present, were to be allowed, where
the language of these speeches was of dangerous tendency
to the best interests of the country. I will not allow
myself to enter into. the matter on which these speeches
are founded, nor to enter into the views of these prison-
ers, or of the Association to which they belonged ; but I
will only say, if these views were to be accomplished in
the manner the speakers seem to suggest, they were of
the most dangerous character for the best interests of this
country. But when I say this, I have to say, that it is
with great pain that I am called upon to propose sen-
tence in the case. I wish I could have been saved this
pain. Undoubtedly it is very painful to move a sentence
against such persons as the pannels at the Bar, who ap-
pear in other respects to have been respectable individu-
als. But we must discharge our duty to the country.
AND CIRCUIT COURTS OF JUSTICIARY. 123
The law must be put in force : and the Court cannot No. e.
John Grant
permit such things to go on without punishment ; and and otherB.
when the Jury have found the prisoners guilty of sedi- Highcourt.
tious speeches, it is the duty of the Court to pronounce ms. '
such a sentence as to shew to others that similar prac- conspiracy
tices cannot be permitted with impunity.
It is a great consolation for me to think, that now, as
the case stands before us, it is undoubtedly a very miti-
gated case of sedition. I give all weight to the judgment
of the Jury in disavowing the intentions of the parties,
namely, that their speeches were intended to produce
what is stated in the libel. I take all this into conside-
ration ; and I take into consideration the finding of the
Jury, that the serious charge of conspiracy is out of the
case. We are called upon, therefore, to consider what
sentence we ought to pronounce, with all possible leniency
to the prisoners ; and the sentence which I have to pro-
propose cannot be thought by any portion of the com-
munity to be a severe punishment in such a case ; and I
am willing to believe that it must appear to every person
of sober understanding, to be as lenient as the Court can
pronounce. The sentence which I propose is, imprison-
ment for each of the prisoners for a period of Four Ca-
lendar Months.
Lord Medwyn. — I concur in the proposition of my
Lord Moncreiif.
The Lord Justice-Clerk. — Henry Ranken and Ro-
bert Hamilton, if, after the period of reflection which you
have had, you entertain and cherish the sentiments and
opinions which have been proved in evidence to have
been delivered by you, it would be unnecessary for me to
say one word more in pronouncing the sentence of the
Court, than this, that the object of the punishment is to
deter you and others from committing a like offence in
time to come. I have to say, that in regard to you, in
particular, the repetition of a similar offence, after punish-
ment has been once inflicted by this Court, must operate
most prejudicially against you in the event of further
124
CASES BEFORE THE HIGH COURT
jota°Graiit conviction. But I would fain hope and trust, and I ex-
and Others, prggs it with sincerity, that, from your demeanour, — I
^jshCourt. iiave gathered it in one way or another, I cannot tell
J 8^8. how, — but I have gathered throughout the course of this
Conspiracy trial, fpom vour whole manner and demeanour, that it is
& Sedition. 'J
not likely that you will again rush wantonly and reck-
lessly into the use of such language as you did upon the
occasions libelled. From the situation which I hold, I
think it also my duty to say, that I do not think the
authorities of this place interfered one day too soon to
prevent and stop the meetings at which such language
had been openly and constantly used.
The sentence of the Court is, that you, Henry Ranken
and Robert Hamilton, be imprisoned for Four Calendar
Months.
Nov. 20.
1848.
Present,
The Lord Justicb-Clebk,
Lords Mackenzie and Medwyn.
Her Majesty's Advocate. — Craufurd A.D. — J. M. Bell A.D.
No. 7.
James
Pnrves.
High Conrt.
Nov. 20.
1848.
Bigamy.
James Pcrves — W. H. Thomson.
Bigamy — Relevancy — Proof. — Held, 1st, That in an indictment
for Bigamy, it is sufiScient in a question of relevancy to aver that
the pannel was lawfully married to the first wife, although the cir-
cumstances set forth in the libel shew that such marriage must have
been an irregular one. 2d, That the proper time to object to the
validity of such marriage, is on the proof, if it be shewn that in
truth the marriage is open to challenge.
James Purves was charged with Bigamy :
In so far as, you the said James Purves having, on the 18th day
of August 1845, or on one or other of the days of that month, or of
AND CIRCUIT COURTS OF JUSTICIARY. 125
July immediately preceding, or of September immediately following, No. 7.
and at or near Paxton Toll-bar, in the parish of Hatton, and county James
of Berwick, been lawfully married to Margaret Leith, daughter of.
and then and now or lately residing with, Elizabeth Laing or Leith, a Jf o'er*'
widow, now or lately residing in or near Narrow Lane of Berwick- 1848.
upon-Tweed, a form or ceremony of marriage having, then and there. Bigamy
been performed by Henry Collins, designing himself celebrator of
marriages in Scotland, and you and the said Margaret Leith having,
then and there, mutually accepted each other as spouses, in presence
of the said Henry Collins and witnesses, and you having lived and co-
habited with the said Margaret Leith as your lawful wife, you the said
James Pufves did, on the 14th September 1848, or on one or other of
the days of that month, or of August immediately preceding, or of
October immediately following, within or near the public-house or
tavern, situated at or near Lamberton Toll, in the parish of Morning-
ton, and county of Berwick, wickedly and feloniously enter into an
irregular matrimonial connection with Catherine Fyfe, daughter of,
and now or lately residing with, Ann Matthew or Fyfe, a widow, now
or lately residing in Haddington, a form or ceremony of marriage
having been, then and there, performed by Robert Luggate, designing
himself celebrator of border marriages, then and now or lately residing
in or near Berwick-upon-Tweed, and you and the said Catherine Fyfe
having, then and there, accepted of each other as spouses, in presence-
of the said Robert Luggate and witnesses, and you did afterwards co-,
habit with the said Catherine Fyfe as your wife : And further, you
the said James Purves did, on the 18th day of September 1848, or on
one or other of the days of that month, or of August immediately pre-
ceding, or of October immediately following, and within or near the
house iu or near Haddington, then and now or lately occupied by the
said Ann Matthew or Fyfe, enter into a matrimonial connection with
the said Catherine Fyfe, after proclamation of banns, the marriaga
ceremony having, then and there, been performed by the Reverend
"William Hogg, then and now or lately minister of the West Congre-
gation, Haddington, in connection with the United Presbyterian
Church, and residing in or near Haddington, and you did thereafter
live and cohabit with the said Catherine Fyfe as your wife ,• and this-
you did, you well knowing that the said Margaret Leith, your wife,
was still alive, and your said marriage with her still subsisting.
W. H. Thomson objected to the relevancy of the in-
dictment. The first marriage libelled, was plainly an
irregular one, celebrated at a toll-bar, by a person not
entitled to marry. The second was also an irregular
one. Hume, vol. i. p. 469, expressed great doubts of
the relevancy of a charge of Bigamy under such circum-
126 CASES BEFORE THE HIGH COURT
No. 7. stances, and his authority had been adopted in the case
Purves. oi Armstrong, High Court, July 15. 1844, Broun, vol. ii.
High Court, p. 257. Bell's Notes, p. 112. There was no authority
1848. ' to show that this indictment was relevant.
Bigamy. The LoRD Justice-Cleek. — The Court have not the
slightest difficulty in sustaining the relevancy of this
indictment. As observed, in the case of Brown, High
Court, Dec. 24. 1846, Arkley, p. 205, which was the
last case on the subject, the allegation in the indictment
that the pannel was lawfully married, is quite sufficient
in a question of relevancy. No doubt the Public Prose-
cutor must establish by evidence a lawful marriage, and
it will be open to the prisoner to redargue that evidence
if he can. But at present we are quite clear, that the
principle laid down in the case of Brown is the correct
one, and that this objection must be repelled.
A variety of evidence was led, conclusively establish-
ing both marriages, under circumstances of considerable
aggravation ; and the Jury having unanimously found
the prisoner guilty, —
LoED Mackenzie, in proposing sentence, said — That in
respect of the aggravated circumstances of the case, he
could not propose a less sentence than that of transpor-
tation. It was no doubt a very unusual one for the
offence of bigamy, but he thought it fully warranted in
the case before them.
The other Judges concurring, the said James Purves,
was accordingly sentenced to be transported for the
period of seven years.
AND CIRCUIT COURTS OF JUSTICIARY. 127
Present,
The Lord Justice-Clerk. Nov. 27.
1848.
Lords Moncreipp and Cockbhrn.
Her Majesty's Advocate — Sol.-Gen. Maitland — Craufurd A.D.
Alexander Matson — Larimer .
Relevancv. — Circumstances in which the Public Prosecutor was held
entitled to libel inconsistent modes of death in a charge of Murder.
Alexander Matson, was charsred with Murder : , n°- s-
° Alexander
Matson.
In so far as, on one or other of the days between the 26th and High Court
30th days of May 1848, both inclusive, the particular day being to Nov. 27.
the prosecutor unknown, or on one or other of the days of said mouth, 1__
or of April immediately preceding, or of June immediately following, Murder,
and within or near the house in or near Hillhousefield, North Leith,
in the county of Edinburgh, then and now or lately occupied by yon,
or at or near that part of the beach or shore, at or near Grinton
Quarry, situated to the west of the Pier of Granton, in the county
of Edinburgh, or at some place or places between your said house
and the said part of said beach or shore, at or near Granton
Quarry aforesaid, at some place in or near Leith, or in or near the
city of Edinburgh, the particular place being to the prosecutor un-
known, you the said Alexander Matson did, wickedly and feloniously,
attack and assault John Matson your son, or reputed son, a child aged
two years or thereby, and you did, with a hammer, or some other in-
strument to the prosecutor unknown, or with your fists, strike the
said John Matson, one or more violent blows on the head, or other
part or parts of his person, or you did kick him on the head with your
feet, or you did seize hold of the said child, and did dash his head
against a stone or the ground or some other hard substance, or you did,
at or near Granton Quarry aforesaid, throw the said John Matson, or
cause him to be thrown, into the sea, and did leave him therein, by all
which or part thereof, or by some other means to the prosecutor un-
known, the said John Matson was by you mortally injured, and im-
mediately or soon thereafter died ; and was thus murdered by you
the said Alexander Matson.
LoRiMEE, for the pannel, objected to the relevancy of
the indictment, in respect that an undue degree of lati-
tude had been taken in libelling the mode in which the
128 CASES BEFORE THE HIGH COURT
No. 8. crime was said to have been committed. Nothing could
Matson. be more diverse, or require more distinct lines of de-
High Court, fence, than the violence ascribed of striking with a ham-
1848. " mer, and the drowning, said to have been caused by
Murder, throwing into the sea. This was contrary to the autho-
ties, Hume, vol. ii. p. 190. It was not pretended that
the body was found in a state of decay, or that it was
otherwise so changed that the mode of death was not
discoverable, so as to bring the case within the exceptions
which were noticed in the note to Hume, vol. ii. p. 193.
The Solicitor-General, on the part of the Crown,
urged, that he had libelled with as much precision as
the circumstances would admit. The body having been
found in the sea, bearing marks of external violence,
which might have been sustained either before or after,
or at the time, of submersion, it was impossible for him
to be more precise ; and he was entitled, therefore, to
state the charge so broadly, in order that the evidence
might support the libel.
The Court held, on the grounds stated by the Solici-
tor-General, that the objection must be repelled, and
observed, that the degree of latitude to be allowed to
the Public Prosecutor, was always a question of circum-
stances to be determined by the Court in each case.
The pannel pleaded Not Guilty ; and after evidence
on both sides, the Jury returned a verdict of Not
Proven.
In respect of which verdict of assize, the said Alexan-
der Matson was assoilzied simpliciter, and dismissed from
the bar.
AND CIRCUIT COURTS OP JUSTICIARY. 129
Present,
The Lord Justice-Clerk,
Dec. i.
Lords Cockbukn and Wood. '^**'
Her Majesty's Advocate — Craufurd A.D. — Beat A.D.
AGAIKST
John Thomson — Broun — Mackonockie.
Evidence — Pboduction. — Circumstances in which the Court refused
to allow the Jury to inspect the head of the pannel, in support of a
plea of insanity, as to a mark said to have been occasioned by an
injury, it not having been previously shewn in evidence that this
mark was there before the pannel committed the act for which he
was tried.
John Thomson, auctioneer, Greenock, was charged, — joi,n"
Thomson.
That albeit, by an Act passed in the tenth year of the reign of "'S"™'*'
His late Majesty George the Fourth, chapter thirty-eight, intituled I848.
' An Act for the more effectual punishment of attempts to Murder in ~z rrTT
' certain cases in Scotland,' it is enacted by section second, ' That from Geo. IV.
' and after the passing of this Act, if any person shall, within Scotland, *'■ °°*
' wilfully, maliciously, and unlawfully, shoot at any of His Majesty's
' subjects, or shall, wilfully, maliciously, and unlawfully, present,
' point, or level, any kind of loaded fire-arms at any of His Majesty's
' subjects, and attempt, by drawing a trigger, or in any other manner,
' to discharge the same at or against his or their person or persons, or
' shall, wilfully, maliciously, and unlawfully, stab or cut any of His
' Majesty's subjects, with intent in so doing, or by means thereof, to
' murder or to maim, disfigure or disable, such His Majesty's subject or
' subjects, or with intent to do some other grievous bodily harm to such
' His Majesty's subject or subjects, or shall, wilfully, maliciously, and
' unlawfully, administer to, or cause to be administered to, or taken by,
' any of His Majesty's subjects, any deadly poison, or other noxious
' and destructive substance or thing, with intent thereby, or by means
' thereof, to murder or disable such His Majesty's subject or subjects,
' or with intent to do some other grievous bodily harm to such His
' Majesty's subject or subjects, or shall, wilfully, maliciously, and un-
' lawfully, attempt to suffocate, or to strangle, or to drown, any of
' His Majesty's subject or subjects, with the intent thereby, or by
' means thereof, to murder or disable such His Majesty's subject or
.38.
130 CASES BEFORE THE HIGH COUKT
No. 9. ' subjects, or with intent to do some other grievous bodily harm to such
JTohn ( jjig Majesty's subject or subjects, such persons so offending, and
1 ' being lawfully found guilty, actor, or art and part, of any one or
Dec'°4^ ' ™°''® °^ ^^^ several offences hereinbefore enumerated, shall be held
1848. ' guilty of a capital crime, and shall receive sentence of death accord-
Con. loth ' ingly/ And albeit, by the laws of this and of every other well-
Geo. IV. governed realm. Assault, especially when committed by shooting at
and wounding any of Her Majesty's subjects, and to the effusion of
blood, the serious injury of the person, and danger of life, is a crime
of an heinous nature, and severely punishable : Yet true it is and
OP verity, that you the said John Thomson are guilty of the statutory
crime of shooting above libelled, and of the crime of assault above
libelled, aggravated as aforesaid, or of one or other of them, actor, or
art and part: In so far as, on the 20th day of July 1848, or on one
or other of the days of that month, or of June immediately preceding,
or of August immediately following, on or neai Hamilton Street, in or
near Greenock, and at or near a part of the said street which is op-
posite or nearly opposite the shop situated in or near the said street,
then and now or lately occupied by William M'llwraith, then and now
«r lately a hosier there, and then and now or lately residing in or near
West Stewart Street, in or near Greenock, you the said John
Thomson did, wickedly and feloniously, attack and assault John
Kerr Gray, then and now or lately town-clerk of Greenock, and'
then and now or lately residing in or near Kilblain Street, in or-
near Greenock, and did present, aim, and discharge, at the said
John Kerr Gray, a pistol or other fire-arm loaded with powder-
and ball, or loaded with powder and some hard and lethal substance-
or substances, and did, wilfully, maliciously, and unlawfully, shoot at
the said John Kerr Gray with the said pistol or other fire-arm loaded
as aforesaid, and a ball or some other hard and lethal substance or
substances, being part of the said shot, did strike and wound the said
John Kerr Gray on or near his right breast or right side, or on some
-other part of his person, whereby he was severely wounded, to the
•effusion of his blood, the serious injury of his person, and the danger
of his life ; and this you the said John Thomson did, with intent in so
doing, or by means thereof, to murder or to maim, disfigure or disable,
the said John K«rr Gray, or with intent to do him some other grievous
bodily harm.
The prisoner pleaded insanity as a special defence.
The evidence on the part of the Crown conclusively
established that the pannel had fired at, and very
dangerously wounded Gray, as charged, and also went
to rebut the plea of insanity.
The prisoner also adduced evidence to shew that he
Geo. IV,
.:. 38.
AND CIRCUIT COURTS OF JUSTICIARY. 131
was subject to fits of derangement, especially after No. 9.
drinking, and also that this had been especially the case Thom»on.
since the pannel had received an injury on the head in High Court,
America some years before. None of the witnesses, i848.'
liowever, spoke to the existence of any mark on his head con. 10th
prior to the time when he was in prison.
Broun, in addressing the Jury, on behalf of the pan-
nel, proposed, that he should uncover his head, in order
that the Jury might see the mark which was said to
have been occasioned by the injury in America, spoken
to by the witnesses in exculpation.
The LoED Justice-Clerk. — That cannot be allowed.
You have not shewn the existence of any such mark
prior to the time of the offence. The first mention we
have of it is when he was in prison. How then can it
be exhibited for the purpose you propose ?
Broun. — The pannel is a production, and as such
may be looked at by the Jury.
The Lord Justice-Clerk. — Not for such a purpose
and in such a way as you propose. You should have
laid a foundation, by shewing the prior existence of such
a mark, if you intended to ask us to allow this.
The Jury unanimously found the pannel guilty of the
statutory charge as libelled, but recommended him to
mercy.
In respect of which verdict of Assize, the said John
Thomson was sentenced to be hanged at Greenock on
the 23d December 1848.'
^ The sentence was afterwards commuted to transportation for life.
132 CASES BEFORE THE HIGH COURT
Present,
Dec. i. The Lord Justice-Clerk,
1848.
Lords Moncreifp, Medwyn, and Cockburn.
Alexander Mackean, Suspender — A. Carnegy Ritchie^
Archibald Wilson, Respondent— iV«ai»«».
Suspension. — Held, 1st, that it is not necessary, in a summary case in
the Police Court, that the pannel should have served upon him a writ-
ten copy of the complaint before trial ; and, 2d, that it is no ground
of suspension that he was not allowed forty-eight hours to prepare
his defence, he not having asked delay at the time.
No. 10. This was a suspension of a sentence pronounced by
^^wiieon."' *^6 Bailies of the City of Glasgow, whereby the suspender
High Court. ^^® Sentenced to sixty days imprisonment, as having
?84'8^" ^^^"^ guilty of ' fraud and imposition,' in obtaining a
- shilling from the Inspector of Poor for the Gorbals
Parish of Glasgow.
The circumstances of the case were as follows : —
The suspender, who was by trade a spinner, and who
had been, shortly before the date of the alleged wrong-
ful imprisonment, in the Glasgow Infirmary for fever,
was unable, on his dismissal from the hospital, to resume
his employment, in consequence of boils on his hands.
He accordingly took employment as a ' piecer' or tyer
up of threads, being the work usually assigned to girls.
Having carried on this work for some time, at which he
could not earn suflBcient for the support of himself and
family, he voluntarily gave it up, assigning the state of
his health as a reason to his master, and obtaining leave
to substitute a girl until he should be able to return. On
the same morning on which he thus left his employment
he applied for relief to the inspector, and declared that
he was out of employment. His application was refused,
as was also a second. Having made a third application,
AND CIRCUIT COURTS OF JUSTICIARY. 133
relief was given to the extent of one shilling. Three jiil^'^S'*
hours afterwards he was apprehended, and taken the fol- wiison. '
lowing morning before the Bailies, who sentenced him to High Court'.
• i 1 • • - , Dec. 9,
sixty days imprisonment, as having obtained the shilling i848.
by fraud. Suspension.
Mackean presented his note, which came on this day
to be heard.
Caenegy Ritchie, for suspender. — Although the crime
of falsehood, fraud, and wilful imposition, was competent
to be tried summarily before a Police Court, yet, inasmuch
as the legislature, by providing in certain Police and other
Acts of Parliament for the trial of cases summarily, had
thereby deprived the lieges, in these cases, of the com-
mon law privilege of having the evidence taken down in
writing, it had, in lieu thereof, provided certain equiva-
lents ; one of these was that a written copy of the charge
or complaint must be served on the accused a sufficient
time before the trial, in order to enable him to prepare
his defence; and another, that he should be allowed
at least forty-eight hours to prepare his defence. In
the suspender's case, no written copy of the charge
was served on him ; so far from that being the case, no
written copy of the complaint or charge existed at the
time of trial, for on its being applied for some days after
the trial by an agent who was then taking an interest in
the suspender, it was not and could not be produced,
and it was only after a threat of a suspension before the
Justiciary Court that a written copy was at length pre-
pared. The accused was not allowed forty-eight hours
wherein to prepare his defence ; and, being locked up
a prisoner in the Police-Office, he could not get access
to any friends who might have advised and assisted
him; and he was a simple ignorant man, who could
not be presumed to know his legal rights.
The Court, without calling for a reply, refused the
suspension, and decided that it was not necessary that a
written copy of the charge or complaint should be served
on the accused in order to summary trial ; and, in regard
134 CASES BEFORE THE HIGH COURT
No. 10. to what was urged for the suspender, that he was entitled
Maekean e. iiJT ,-,■,• !_•
Wilson, to have had forty-eight hours wherein to prepare nis
HighCourt. defence, that this was contingent on the pannel request-
1848.' ing it at the time.
Suspension.
C. Spencb, S.S.C., Suspender's Agent. Webster, W.&, Respondent's Agent.
Present,
Tbe Lord Justice-Clerk,
Ceo. 11.
'848. Lords Moncreifp and Medwyn.
Her Majesty's Advocate — Craufurd A.D. — Deas^ A.I>..
James Hoyes — Larimer.
Theft — Amotio. — Circumstances in whicb it was held that the amotio
was not sufficient to constitute the crime of theft.
James Hoyes was charged with Theft, committed by
No. TL means of Housebreaking; as also with Housebreaking
u^Z ^^*^ Intent to Steal.
HighCourt
Dec 11. In so PAR AS, on the night of the 25th, or morning of the 26th, day
of September 1848, or on one or other of the days of that month, or of
Theft, &e. August immediately preceding, or of October immediately following,
you the said James Hoyes, did, wickedly and feloniously, break into-
and enter a store-room, situated in or near Dickson's close, in or near
the Cowgate of Edinburgh, then and now or lately occupied by Richard
Sandilands, cowfeeder, then and now or lately residing there, and this
yon did by opening the door thereof, by means of a false key or pick-
lock, or forcing open the door by some means to the prosecutor un-
known, and entering thereby ; and having thus, or by some other
means to the prosecutor unknown, obtained entrance into said store-
room, you the said James Hoyes did, then and there, wickedly and
fejlpniously, steal and theftuonsly away take, a cheese, weighing twenty
pounds, or thereby, the property, or in the lawful possession, of the-
said Richard Sandilands : Or otherwise, time above libelled, you
the said James Hoyes did, wickedly and feloniously, break into and
enter the said store-room in manner above mentioaed ; and this yoa
did with intent to steal.
AND CIRCUIT COURTS OF JUSTICIARY. 135
The evidence against the pannel was, that he had No. ii.
broken into a store, adjoining the house of Sandilands, Hoyes.
containing cheeses, which had been carefully left shortly High Court.
before placed in pairs, one upon the other. The pannel Tsis. '
was taken in the room by a policeman, and one cheese Theft, &c.
was found to have been removed half off the one under it.
LoRiMER, for the pannel, contended, that the species
Jacti proved did not amount to the crime of theft, as
there had not been any sufficient amotio to shew an
actual taking, which was always required in a case of
theft.
The Lord Justice-Clerk, said, that the amotio here
proved was not, in the opinion of the Court, sufficient
to justify a conviction for theft, as it might easily have
occurred by displacement, when the pannel was skulk-
ing about to avoid detection ; and they directed the
Jury to acquit on that charge. Even the proof of any
displacement was very unsatisfactory, as it all depended
on every row of the cheeses having been placed regu-
larly above the other, and each cheese on the centre of
the one below. This was too hard a presumption.
On the charge of housebreaking with intent to steal,
the Jury uimnimously found the prisoner guilty.
In respect of which verdict of Assize, the pannel was.
sentenced to be imprisoned for eighteen months.
Her Majesty's Advocate. — Graufurd A.D — J. M. Bell A.I^,
AGAINST
Mary Sutherland and Isabella Gibson or Murray. — Lorimer..
IDoCNTERiPEIT CoiN GuiLTY KNOWLEDGE StAT. 2d AND 3(1
Will. IV., c. 34.^"Where two pannels were charged, inter alia,
with having base coin in their possession at the time of uttering
136 CASES BEFORE THE HIGH COURT
No- 12. other base coin : 1st, Held that it was sufficient to establish the
Sutherland offence under the statute against both prisoners, to shew that they
& Isabella were acting under a common design in uttering, although one of
them onlj had possession of the base coin. 2d, Direction to the
Dec. 1 1. ' Jufyj that, in judging of the sufficiency of the proof of a charge of
1848. uttering base money, the Jury were entitled to take into considera-
Con. 2d & tion that the paunel had been previously convicted of an offence
^A WTill TV J. •'
e. 36 ' against the coinage acts, as an evidence of guilty knowledge.
Mary Sutherland and Isabella Gibson or Murray
were charged, —
That albeit, by an Act passed in the second year of the reign of
His late Majesty King William the Fourth, chapter thirty-four, inti-
tuled ' An Act for consolidating and amending the Laws against of-
' fences relating to the Coin,' it is enacted, by section seventh, ' That
' if any person shall tender, utter, or put off, any false or counterfeit
' coin, resembling, or apparently intended to resemble or pass for, any
' of the King's current gold or silver coin, knowing the same to be
' false or counterfeit, every such offender shall, in England and Ire-
' land, be guilty of a misdemeanour, and in Scotland of a crime and
• offence, and, being convicted thereof, shall be imprisoned for any
' term not exceeding one year ; and if any person shall tender, utter,
' or put off, any false or counterfeit coin, resembling, or apparently
' intended to resemble or pass for, any of the King's current gold or
' silver coin, knowing the same to be false or counterfeit, and such
' person shall, at the time of such tendering, uttering, or putting off,
' have in his possession, besides the false or counterfeit coin so tender-
' ed, uttered, or put off, one or more piece or pieces of false or counter -
', feit coin, resembling, or apparently intended to resemble or pass for,
' any of the King's current gold or silver coin, or shall, either on the
' day of such tendering, uttering, or putting off, or within the space of
' ten days then next ensuing, tender, utter, or put off, any more or
' other false or counterfeit coin, resembling, or apparently intended to
' resemble or pass for, any of the King's current gold or silver coin,
' knowing the same to be false or counterfeit, every such offender
' shall, in England and Ireland, be guilty of a misdemeanour, and in
' Scotland of a crime and offence, and, being convicted thereof, shall
' be imprisoned for any term not exceeding two years ; and if any
' person who shall have been convicted of any of the misdemeanours, or
' crimes and offences, hereinbefore mentioned, shall afterwards commit
' any of the said misdemeanours, or crimes and offences, such person
' shall, in England and Ireland, be deemed guilty of felony, and in
' Scotland of a high crime and offence, and, being convicted thereof,
' shall be liable, at the discretion of the Court, to be transported be-
' yond the seas for life, or for any term not less than seven years, or
aiTd circuit courts of justiciary. 137
' to be imprisoned for any term not exceeding four years;' Yet tbce jjq_ jq,
IT IS AND OP VERITY, that you the said Mary Sutherland are guilty of Mary
the crimes and offences set forth in the above -quoted section of the & jgab^a
statute above libelled, or of one or more of them, actor, or art and Gibson,
part ; and you the said Isabella Gibson or Murray are guilty of the High Court,
crimes and offences, and high crime and offence, set forth in the said Dee. U.
section of the said statute, or of one or more of them, actor, or art and
part: In so fab as on the 18th day of September 1848, or on one or ojwmT fy
other of the days of that month, or of August immediately preceding, «. 36.
or of October immediately following, in or near the shop situated in
or near Adam Square, in or near Edinburgh, then and now or lately
occupied by Daniel White, then and now or lately spirit-merchant
there, you the said Mary Sutherland and Isabella Gibson or Murray
did, both and each, or one or other of you, wickedly and feloniously,
tender, utter, or put off, as genuine, a false or counterfeit coin, re-
sembling, or apparently intended to resemble, or pass for, a sixpence
piece of the Queen's current silver coin, you knowing the same to be
false or counterfeit ; and this you did, by then and there delivering the
same as genuine to Samuel Bates, then and now or lately shopman in
the employment of the said Daniel White, then and now or lately re-
siding in or near Murdoch's Close, High Street, Edinburgh, in payment
of a bottle or a pint bottle of ale, then and there purchased, or proposed
to be purchased, by you, you proposing to receive the balance in
change : Lireas (2.), time above libelled, and within or near the
shop or premises above libelled, you the said Mary Sutherland and
Isabella Gibson or Murray, both and each, or one or other of you, had
in your possession besides the false or counterfeit coin so tendered,
uttered, or put off, as above libelled, a false or counterfeit coin, re-
sembling, or apparently intended to resemble, or pass for, a sixpence
piece of the Queen's current silver coin : And you the said Isabella
Gibson or Murray have been previously convicted of the crimes and
offences set forth in the seventh section of the statute above libelled,
or one or other of them.
The pannel Sutherland pleaded guilty. The other
pannel went to trial.
It appeared from the evidence, that the two pannels
had gone together into a spirit shop for a dram, which
was mutually partaken of; that Sutherland had tendered
^ bad sixpence in payment, and that on being apprehend-
ed, another piece of base coin was foimd upon her.
There was no evidence against the other pannel, except
that she was in the company of Sutherland, and that she
K
138 CASKS BEFORE THE HIGH COURT
No- ^2. partook of the dram for which the bad sixpence was
Sutherland tendered.
Gibson.* LoElMER, for iMurraj, contended, that there was no
High Court, proof to connect the pannel Gibson with the offences to
ms!' which Sutherland had pleaded guilty.
Con. 2d & The Lord Justice-Clerk, in charging the Jury, said,
3d Will. IV. ^jjg^^ j£ ^]^gy considered that Murray was art and part
with Sutherland in the proceedings which formed the
subject of the present enquiry, then, although Sutherland
alone was the utterer of the base coin, and though no bad
money was found on Murray, they would be entitled to
find both guilty of the offences libelled, both having
gone on a common design.
His Lordship also directed them, that in respect of
the two previous convictions for the same offence, which
had been proved against the prisoner Murray, that they
were entitled to take them into calculation, as evidence
of guilty knowledge on the part of Murray (if they were
satisfied that the two pannels were acting in concert),
for they tended to shew that Murray was a trader in
base coin. At the same time he directed the Jury, that
in determining the weight to be given to such evidence,
they would have regard to the lapse of time since the
date of the last conviction, which, in the present instance,
was considerable, as diminishing the effect such evidence
might otherwise have had.
The Jury unanimously found the libel against the pan-
nel Gibson or Murray not proven.
In respect of which verdict of Assize, the said Isabella
Gibson or Murray was assoilzed simpliciter.
In respect of the judicial confession of the pannel
Mary Sutherland, she was sentenced to be imprisoned for
eighteen months.
AND CIECUIT COURTS OF JUSTICIARY. 1 39
Present,
The Lord Justice-Qlerk, Dee. 20.
1848. '
Lords Moncreiff, Medwyn, Cockbubn, and Wood.
Peter Phillips and William Ford, Suspenders — Moncreiff.
AGAINST
John Gross, Respondent — Neaves.
Police Court — Informality. — Circumstances in which a sentence
of a Police Court was set aside in consequence of the evidence not
having been reduced to writing.
This was a suspension of a sentence pronounced by No. is.
one of the bailies of the Burgh Court of Airdrie, pro- phii!^3&
ceeding on the following petition and complaint : — FordT
John Cross.
Unto the Honourable the Magistrates of Airdrie, or any of High Court.
' them officiating as Judge in the Police Court of Airdrie, — j g^g
The Complaint of John Cross, writer in Airdrie, Procura-
' tor-fiscal of Court for the Public interest.
' The Complaiuer charges Peter Phillips, miner, Airdrie ; John
' Gilraour, miner, Airdrie ; John Gray, miner, Airdrie ; and William
' Ford, miner or collier, Airdrie, with disorderly conduct and breach
' of the peace, actors or actor, or art and part : In so far as, on or
' about Wednesday, the 5th day of July 1848, and at or near the gar-
' den ground attached to Mavisbank Cottage, occupied by John Cross,
' writer in Airdrie, situated at or near Commonside, Airdrie, they all
' and each, or one or more of them, did wantonly and maliciously at-
' tack, molest, annoy, and use violent, threatening, abusive, and ob-
' scone language towards Isabella Copland, servant to the said John
' Cross, and others ; and also, did then and there, otherwise conduct
' themselves in a riotous and disorderly manner, to the annoyance of
' the lieges, and in breach of the peace.
I (Signed) ' John Cross, Procurator-Jtscal.'
The circumstances out of which the complaint arose
were as follows : — The respondent is proprietor of a small
140 CASES BEFORE THE HIGH COURT
No. 13. cottage and garden, situated in Airdrie, Adjoining his
Phillips & fence was a well, situated on ground belonging to his
FordT superior, with whose consent all parties in the neigh-
^^?!^^^- bourhood had been in the practice of supplying them-
^Lfc^o!*" selves with water therefrom. The respondent, wishing
^°*"- to appropriate the well to himself, caused a lid, secured
Suspension jjy j^ padlock, to be placed on the top thereof, which was
removed by order of the superior. The respondent
afterwards, in order to drive away the people who were
accustomed to resort there for water, allowed his family
and servants to cast clay and rubbish into the well, and
thereby to render the water unfit for use. On the 5 th
of July 184S, the complainers went to the well for water.
When there, they found the respondent's maid-servant
casting rubbish over a wall from his garden, part
of which fell into the well, and rendered the water
unfit for use. Whereupon an altercation ensued, in the
midst of which the respondent appeared, and having
charged the complainers with a breach of the peace, he
thereafter presented the preceding petition to the Police
Court. On the same day, a warrant to apprehend
the complainers, and others mentioned in the petition,
was granted by one of the bailies. This warrant was
never formally served upon or intimated to th^ com-
plainers ; but, on the 10th of July, they appeared before
another bailie, who, having partially heard the case, at
the request of the respondent, committed them to the
prison of Airdrie for farther examination, — the re-
spondent positively objecting to their being liberated on
bail. On the 13th, the case was heard in the Police
Ofiice, with closed doors, before a single judge, and was
taken up .without any adjournment, — no agent being
allowed to be present on behalf of the complainers.
After hearing evidence on both sides, — no note or record
of which was reduced to writing, the judge pronounced
sentence, decerning the complainers to pay respective-
ly a fine of 30s., or, failing payment, to be imprisoned
in the prison of Airdrie for twenty days. The fine not
aKd circuit courts op justiciary. 141
being paid, they were afterwards, on the same evening, No. 13.
taken to prison, under the following warrant : — Phiiups &
William
' At Airdrie, the ISth day of July 1848 years. — Sitting in judgment, . *'°''^ "■
' Charles Robertson, Esquire, one of the magistrates of Airdrie. — The —_
' cause being called, the defenders appeared, and the bailie having ^^^ '^ '
' heard them in answer to the complaint, and examined on oath, in 1848.
' their presence, the witnesses adduced, Finds the defenders guilty of Suspensiou.
' the offences charged in the within complaiijt ; and, in respect thereof,
' decerns and adjudges the said defenders, Peter Phillips, John Gil-
' mour, John Gray, and William Ford, to be imprisoned in the prison
' of Airdrie, and detained therein, subject to the rnles and regulations
' thereof, for the period of twenty days from this date.
(Signed) ' Charles Robertson, Bailie.'
Phillips and Ford suspended, and their cases were this
day heard.
MoNCREiFF, for the suspenders, — The whole proceed-
ings were irregular and informal, inasmuch as there was
no proof reduced to writing, on which the sentence had
proceeded {Penman v. Watts, High Court, Nov. 24. 1845,
Broun, vol. ii. 586.) He was then stopped.
Neaves, for the respondent — The case is not compe-
tently here. By the 72d section of 1st and 2d Geo. IV.
c. 60 (the Airdrie Police Act), it is provided that any
aggrieved person may appeal to the Circuit Court, and
that was the remedy which the complainers should have
taken.
Lord Medwyn. — Surely a man in jail is not to en-
dure his full imprisonment before he appeals. He would
then be met with another objection, that there was no-
thing to suspend. In this case the whole proceedings
are plainly inept, and I think we ought to suspend, with
expenses.
The other Judges concurred.
142 CASES BEFORE THE HIGH COURT
John Eitchie, Suspender — Deae.
AGAINST
David Pilmbr, Eespondent — Neave$,
Suspension — Informality of Citation. — Held, that where a person
has been cited as a witness, and preqpgnosced as such, he cannot,
on his attendance in obedience to his citation, be summarily put
to the bar, and tried as being guilty of the offence, in respect of
which he had been required to attend as a witness.
Ritchie*B "^^^^ Suspensioii originated in the following circum-
P'lmer. stances : —
High Court. The Suspender who was master of the schooner
1848. ' ' Jules' of Dundee, had bought at Revel three pork
Suspension, hams, and other articles of diet, as he alleged, for his
own use ; as also, some beef at a small price for the use
of the vessel. During the voyage home, having some
ladies as passengers, he had used for their accommodation
two of the pork hams he had bought for himself. He
had also cured as hams two portions of the beef which he
had bought for the use of the vessel. The value of the
beef hams so cured, was much less than that of the pork
hams which had been consumed.
On the arrival of the vessel at Dundee, and before
any adjustment of accounts between the suspender and
the shipowners, the suspender, in the presence of the
ship's agent, ordered the cook to take two beef hams
which he had cured on board out of the vessel, and
carry them on shore for his own use.
The ship's agent having given information against the
cook, a criminal complaint of theft was preferred against
him at the instance of the respondent, and the morning
when the same was coming on to be heard, the suspen-
der was cited as a witness in the following terms : —
' I, Joseph Hanna, Constable of the Harbour Police Court of Dun-
' dee, and surrounding bounds, over which the powers and regulations
' of the Dundee Police Act and Dundee Harbour Acts extend, sum-
AND CIRCUIT COURTS OF JUSTICIARY. 143
mon you, John Ritchie, now or lately Shipmaster, residing in No. 14.
Broughty Ferry, to compear before the Judge of said Harbour Po- p?~g-*'
lice, in a Court to be held in the Burgh Police Court-Room, Dun
dee, upon the 5th day of October 1 848, in the hour of cause, half- jfeo. 20.
' past nine o'clock forenoon, to bear evidence for the Complainer, in 1848.
' the complaint at the instance of David Pilmer, Superintendent of Suspension.
' Harbour Police, against Charles Jameson, sailor, accused with the
' crime of theft, with certification : This I do upon the 5th day of
' October 1848. Joseph Hanna, H. P. Constable.'
This citation was served upon the suspender at half-
past six in the morning, at Broughty Ferry, a distance
of four miles from Dundee.
On the suspender's arrival in Dundee, shortly before
the time of hearing the complaint, he was precognosced
by the respondent, and told to wait in a private room.
Shortly afterwards, he was informed that he would be
jointly prosecuted along with Jameson the cook ; and
was accordingly, after the lapse of half an hour, placed
at the bar, together with him, on the following com-
plaint, which had been prepared in the mean time : —
' Unto the Honourable the Judges actiug in the Police Court for
' the Burgh of Dundee, and also for the Harbour and those parts of
' the River or Frith of Tay which are within the limits and precincts
' of the Port and Harbour of Dundee, and over which the powers and
' regulations of the Dundee Police Act and Dundee Harbour Act ex-
' tends ; Humbly complains David Pilmer, Superintendent of the
' Dundee Harbour Police, and Procurator-Fiscal of Court for the
' public interest, against John Ritchie, shipmaster, residing in Broughty
' Ferry, and Charles Jameson, sailor or sailmaker, residing at Hawk-
' hill, Dundee, defenders, for being guilty of the crime of theft, actors or
' art and part : In so far as, on Wednesday the 4th of October 1848
' years, from the schooner ' Jules' of Dundee, then lying in Earl
' Grey's Dock, at the Harbour of Dundee, said defenders did, both
' and each, or one or other of them, wicked and feloniously steal, and
' theftuously away take, two beef hams, weighing 40 lbs. or thereby,
' the property or in the lawful possession of Baxter Brothers and
' Company, merchants and shipowners in Dundee, and which property,
' stolen as aforesaid, does not exceed in value £10 sterling. It ia
' therefore craved, that warrant be granted for apprehending and
' carrying the said defenders into Court, to answer to this complaint,
' and for citing witnesses for both parties; and that said defenders be
144 CASES BEFORE THE HIGH -COURT
No. 14. ' thereafter punished according to law, or such other judgment as the
Ritchie V. i ^g^gg jjj^y require. — According to Justice,
. 1_ < David Pilmer, Superintendent.'
High Court.
1848 ■ On this complaint, the Judge granted the following
Suspension, deliverance forthwith : —
' Dundee, bth October 1848. — ^The Judge grants warrant to officers
' of police for apprehending and bringing the said defenders, John
' Ritchie and Charles Jameson, into Court, and for citing witnesses
' for both parties. Peter Hean, Bailie.'
When placed at the bar, the suspender, as alleged by
him, repeated what he had said to the respondent, that
the hams had been taken out of the vessel by his orders,
under the circumstances above set forth. This was
treated as a plea of guilty by the Police Judge, who
thereupon pronounced the following sentence : —
' Dundee, 5th October 1 848. — Having considered the foregoing
' complain^, examined the defenders, and the defender John Ritchie
' having confessed that he is guilty as libelled. Finds him guilty in
' terms of his own confession ; and having heard evidence adduced
' against the defender Charles Jameson, Finds the complaint proven
' against the said Charles Jameson : Therefore, adjudges and ordains
' the defenders to be imprisoned in the Jail or Tolbooth of Dundee,
' in modum jprnnce, for the space after mentioned, — viz., the defender
' John Ritchie, for sixty days, and the defender Charles Jameson, for
' thirty days, both from this date ; and, during the period of imprison-
' ment, to be kept at hard and continued labour in the Bridewell de-
' partment of said Jail or Tolbooth, subject to the rules and regula-
' tions of the Establishment, and grants warrant accordingly : Or-
' dains the stolen property to be restored to the true owners, designed
' in the complaint. Peter Hean, Bailie'
This sentence was immediately carried into effect ;
whereupon Ritchie suspended, on the ground that, hav-
ing been cited as a witness, and precognpsced as such, it
was incompetent afterwards to put him^o the bar as a
criminal, and proceed to convict him on the statement
he had made, whilst considering himself a witness.
Pleaded for the suspender, that this was an irregular
and illegal proceeding. No person who had been cited as
AND CIKCDIT COURTS OF JUSTICIARY. 145
a witness could competently be precognosced in that cha- No. u.
IP 11 . 1 11 n Ritchie -p.
racter, and alterwards be put into the dock on a tew pumer.
minutes notice, and tried forthwith, without opportunity HighCom-t.
to obtain advice, and get that assistance which was ne- ms. '
cessary to enable him to refute so serious a charge ; case Suspension,
of Robertson v. Mackay, High Court, July 21. 1846,
(Arkley, p. 114).
2. The alleged plea of guilty on which the sentence
professedly proceeded, was altogether a mistake. In
point of fact, it was a plea of not guilty, inasmuch as
the facts shewed that the taking was lawful.
Pleaded for the respondent — The Judge found that
the suspender confessed his guilt, and he was the proper
judge to say whether he had done so or not. It was
impossible to ascertain what were the words used by the
suspender at the time, and consequently the Court could
not enquire whether the inference which the Judge drew
was well founded, or otherwise.
2. There was no illegality or irregularity. The police
had acted honestly throughout ; they treated him as a
witness, so long as they thought him innocent of the
crime; and when they had discovered him to be art and
part, there was no necessity for serving upon him any
complaint, or citing him to appear, as he was already in
custody. Besides, it was not averred that he had re-
quested time to prepare a defence when the case was
heard.
The CouET, without entering on the question, wher
ther the statement of the suspender warranted the
Bailie to consider it as a plea of guilty, unanimously
sustained the suspension, on the ground that the citing
a person as a witness so short a time before the trial of
the party against .whom he was to have been adduced —
precognoscing hiin as such, and then turning round and
charging him on his own evidence, so procured, was an
irregularity so flagrant, that no sentence could be sus-
tained which had followed thereon ; and observed, that
146 CASES BEFORE THE HIGH COURT
No. J4. the case of Robertson v. Mackay entirely governed the
Ritchie d.
Piimer. pressnt.
■ High Court.
"fais." The sentence was accordingly suspended, with ex-
Suspension, penseS.
WoiHEESPooN & Mack — Lockhart, Huni£b, & Whuehead. — Agents.
Methven, Saspender. — P. Frater.
Glass, Respondeat. — Neaves.
Suspension — Master and Servant — Statute 4th Geo. IV. o. 34.
— Held, that a judgment of the Quarter Sessions both discharging
the servant and abating the wages, was unwarranted by the statute.
No. IS. This was a suspension of a decision of the Quarter-
^^^Giass '' Sessions of the county of Fife, reversing the decision
High Court °^ *^® Justiccs on a complaint against the suspender,
Dee. 20. that he had absented himself from his master's service
1848.
-before the period of his engagement had expired. On
the original hearing before the Justices, they found in
favour of the suspenderj and dismissed the complaint,
whereupon the respondent having appealed to the Quar-
ter-Sessions, that judgment was reversed, and it was
decerned that the suspender should be discharged from
service, and should also abate all wages.
Feaser, for the suspender, argued, that this decerni-
ture was more than the statute authorised. The third
section of 4th Geo. IV, cap. 34. only authorised alterna-
tive penalties. Quarter-Sessions might either discharge,
or abate the wages which had been earned, but could
not do both, as those penalties were not cumulative
under the statute.
Neaves. — The sentence was not objectionable on the
AND CIRCUIT COURTS OF JUSTICIARY. 147
ground alleged. The punishment inflicted was merely No. ifi.
It i ii ^ , 1 - 1 , , , , , 1 1 Methven v.
that the wages tor the whole term should be abated, and Glass.
the discharge from service followed as a necessary con- High Court.
Dec. 20.
sequence. i848.
Lord Justice-Clerk. — How can you abate what is suspeuBion.
not yet due.
Neaves. — Take it that it discharges him from the
service, it follows that he would get no wages.
Lord Justice-Clerk. — Yes, he would get wages up to
the period when he was discharged. The principle is to
prevent desertion in search of better wages, but the
penalty imposed is either dismissal from service, or for-
feiture of wages already earned. These are in the
alternative, whereas you have proceeded to impose both.
That is clearly beyond the statute.
Lord Moncreiff. — If you make the sentence extend
to wages not due at the period of dismissal, then it is
repugnant and insensible. If it had been your object to
mulct the suspender of his wages for the whole term, in-
stead of dismissing him from the service, you should
have ordained him to serve the whole time without
wages.
The other Judges concurred.
The note was accordingly passed, with £5, 5s. of
modified expenses.
Andrew Mhrrat, W.S. — John Murdoch, S.S.C. — Agents.
148 CASES BEFORE THE HIGH COURT
Robert Craig, Suspender. — Neaves.
AGAINST
John Mure Steel. — Deas.
Police Court — ImiEGnLARiTY op Citation. — Held, that it was in-
competent to proceed iu a Police Court against a pannel who had
been cited on the previous day to that on which the case was heard,
to answer a different charge.
No. 16. This suspension arose in the following manner. On
stelh * the 12th of December 1848, the respondent presented a
High Court, petition to the Justices of the Peace for the county of
fsis. ' Lanark, for citation of the suspender, on a charge of
Suspension, theft, and on that day the suspender found bail for his
appearance on the 14th. On the 13th a citation was
regularly served, requiring him to appear on the 14th,
to answer to the charge of theft for which he had given
bail. When the case came on he was charged with
theft or breach of trust alternatively. He was attended
by his agent, and made no objection to the regularity of
the charge, and was thereupon afterwards convicted by
the presiding Justices.
Having presented his bill of suspension, which came
on this day to be heard, the Court, without hearing
Neaves for the suspender, called on
Deas, for the respondent, who urged that there was
no ground for suspending the conviction, as the party,
who acted under advice at the time when the original
complaint was heard, took no objection to the regularity
of the proceedings, and thereby homologated any mistake
which might have been made. It was as if the party,
having been present in the Police-office, had been
charged on a regular complaint for theft or breach of
trust, without ever having been cited at all. If, in such
circumstances, he chose to go to issue, without objecting
that he had not been cited, he could not afterwards ob-
ject when a conviction followed. No doubt the citation,
which was actually served in this case, was inapplicable,
AND CIRCUIT COURTS OF JUSTICIARY. 149
and must be held to be out of the case, which must be No. le.
considered as if it commenced when the parties came to steei. '
the bar on the 14th. High court.
The Lord Justice-Clerk. — There is no extremity of Tsis. '
time in this case, requiring us to hold the proceedings Suspension.
good in respect thereof. There was a regular complaint
made on the 12th, and bail was taken on that day for
the appearance of the suspender on the 14th, to answer
to a charge of theft. Then on the 13th there is a cita-
tion to answer to the same charge. When the case is
called on the 14th, the party is charged with theft or
breach of trust alternatively. This, I conceive, to be an
incompetent proceeding. I cannot think in these sum-
mary cases that it is competent to cite a party to answer
for one offence, then, without notice, on his appearance
in obedience to the citation, to charge him with another.
I think this objection is insuperable, and that the con-
viction ought to be suspended, with expenses.
The other Judges concurred.
WoTHERspooN & Mack, W.S.^John Leishman, W.S. — Agents.
Present,
The Lord Justice-Clerk. Jan. 2.
1849.
Lords Mackenzie and Cockburn.
Her Majesty's Advocate — Sol.-Gen. T. Maitland — Graufurd
A.D.
against
John Hamilton and Mary Garden or Hamilton. — Moncreiff.
Beset op Theft — Married Woman. — Eule stated, that it was not
enough to warrant conviction of a married woman of reset of theft,
that she had endeavoured to conceal some of the articles from the
police ; the Jur j being satisfied that she did this, not because she
had been concerned in the reset, but merely to screen her hus-
band.
150 CASES BEFORE THE HIGH COURT
No 17. John Hamilton and Maey Garden or Hamilton,
John ■
Hamilton were charged with Reset of Theft :
and Mary °
Hamilton.
-— -r In so fab as (1.), on one or other of the days of the month of April
Jan.°2.'^ ■ 1846, or of March immediately preceding, or of May immediately fol-
1849. lowing, the particular day being to the prosecutor unknown, some per-
Reset of son or persous to the prosecutor unknown, having wickedly and felo-
Theft. niously stolen and theftaously carried away from the house or pre-
mises in or near Nicolson Street of Edinburgh, then and now or lately
occupied by John Crichton, tailor and clothier, then and now or lately
residing there, a silver watch, the property, or in the lawful possession,
of the said John Crichton : As also (2.), on one or other of the days
of the mouth of June 1 848, or of May immediately preceding, or of
July immediately following, the particular day being to the prosecutor
unknown, some person or persons to the prosecutor unknown, having,
within or near a house in or near the Caiiongate of Edinburgh, the oc-
cupant or occupants of said house being to the prosecutor unknown,
wickedly and feloniously, stolen and theftuously carried away from the
pocket or person of Emanuel Burton, a cabinet-maker, then and now
or lately residing in Heriot Mount, in or near Edinburgh, a silver
watch, and a guard-chain, the property, or in the lawful possession, of
the said Emanuel Burton : As also (3.), on the 8th day of June 1848,
or on one or other of the days of that month, or of May immediately
preceding, or of July immediately following, some person or persons
to the prosecutor unknown, having wickedly and feloniously stolen and
theftuously carried away from the house or premises in Broxburn,
parish of Uphall, and county of Linlithgow, then and now or lately
occupied by John Bruce, merchant, then and now or lately residing
there, a gold watch, the property, or in the lawful possession, of the
said John Bruce : As also (4.), on the night of the 19th, or morning
of the 20th, day of June 1848, or on one or other of the days of that
mouth, or of May immediately preceding, or of July immediately fol-
lowing, some person or persons to the prosecutor unknown, having,
within or near a house in or near the Leith Wynd of Edinburgh, oc-
cupied by Janet Shaw, or by some other person to the prosecutor un-
known, wickedly and feloniously, stolen and theftuously carried away
from the pocket or person of David Blaikie, mason, then and now or
lately residing in or near the Links of Burntisland, in the parish of
Burntisland, and county of Fife, a silver watch, the property, or in the
lawful possession, of the said David Blaikie : As also (5.), on the
night of the 22d, or morning of the'23d, day' of June 1848, or on one
or other of the days of that month, or of May immediately preceding,
or of July immediately following, some person or persons to the pro-
secutor unknown, haying, within dr near a house in or near the Leith
Wynd'of Edinburgh, then or recently occupied by Ann Laurie, then
or recently before residing there, or by some other person or persons
AND CIRCUIT COURTS OF JUSTICIARY. 151
to the prosecutor uaknown, wickedly and feloniously, stolen and theftu- Noi ] 7.
ously taken away from the pocket or person of Hugh Norris, surgeon, ufmiu..
then residing in Union Place, in or near Edinburgh, and now or lately and Mary
at South Petherton, in the county of Somerset, in England, a silver Hamilton.
watch, and a pencil-case, the property, or in the lawful possession, of High Court-
the said Hugh Norris : As also (6.), on the night of the 23d, or morn- isig.'
ing of the 24th, day of June 1848, or on one or other of the days of that _ .
month, or of May immediately preceding, or of July immediately follow- Theft,
ing, some person or persons to the prosecutor unknown, having, within
or near a house in or near the Leith Wynd of Edinburgh, the occupant
or occupants of said house being to the prosecutor unknown, wickedly
and feloniously, stolen and theftuously taken away' from the pocket or
person of James Cairns, a mason, then and now or lately residing in
Home Street of Edinburgh, a silver watch, the property, or in the lawful
possession, of the said James Cairns : As also (7.)) on the night of the
7th, or morning of the 8th, day of July 1848, or on one or other of the
days of that month, or of June immediately preceding, or of August
immediately following, some person or persons to the prosecutor un-
known, having, within or near a house in or near the Leith Wynd of
Edinburgh, the occupant or occupants of said house being to the pro-
secutor unknown, wickedly and feloniously, stolen from George Simp-
son, then and now or lately a servant in the employment of Thomas
Macdougal Brisbane, Esquire, and then and now or lately residing at
Brisbane, in the parish of Largs, and county of Ayr, a silver watch,
the property, or in the lawful possession, of the said George Simpson :
As ALSO (8.), on the 2d day of August 1848, or on one or other of the
days of that month, or of July immediately preceding, or of September
immediately following, some person or persons to the prosecutor un-
known, having, within or near a house in or near the Leith Wynd of
Edinburgh, the occupant or occupants of said house being to the pro-
secutor unknown, wickedly and feloniously, stolen and theftuously
taken ?.way from the pocket or person of Koderiok M'Kenzie, plate-
layer, then and now or lately residing with John Jenkinson, farm-ser-
vant, at Ballencrieff, in the parish of Aberlady, and county of Had-
dington, a silver watch, the property, or in the lawful possession, of
the said Eoderick M'Kenzie : As also (9.), on the 22d day of August
1848, or on one or other of the days of that month, or of July imme-
diately preceding, or of September immediately following, Alexander
M'Kay and Thomas Ogilvie, both now or lately prisoners in the prison
of Edinburgh, or some other person or persons to the prosecutor un-
known, having wickedly and feloniously stolen and theftuously car-
ried away from the house in Hanover Street, in or near Edinburgh,
then and now or lately pcoupied by James Gravett, flesher, then and
now or lately residing there, a brooch, the property, or in the lawful
possession, of the said James Gravett : As also (10.), on the 30th day
of August 1848, or on one or other of the days of that month, or of
152 CASES BEFORE THE HIGH COURT
No. 17. J"ty immediately preceding, or of September immediately following,
John some person or persons to the prosecutor unknown, having, at some
and Mary plS'Ces within or near Edinburgh, the particular place being to the pro-
Hamilton^ secutor unknown, wickedly and feloniously, stolen and theftuously
High Court, taken away from the pocket or person of "William Clark, spirit-dealer
*!.*"• ^" in the Low Calton, in or near Edinburgh, then and now or lately re-
'■ — '- — siding there, a gold watch, a gold chain, and a key, the property, or
Theft '" *^® lawful possession, of the said William Clark ; you the said John
Hamilton and Mary Garden or Hamilton did, both and each, or one
or other of you, within the period between the dates respectively above
libelled, as the dates of the thefts respectively above libelled, and the
7th day of September 1848, and within or near the house or premises
in theTCanongate above libelled, then and now or lately occupied by
you, or one or other of you, or at some other place or places to the
prosecutor unknown, the particular time and place being to the prose-
cutor unknown, wickedly and feloniously, reset and receive the several
articles above libelled, or part thereof, the same having been respec-
tively stolen as above libelled, you well knowing the same to have
been stolen :
The evidence against the pannels consisted of the per-
sons who had been robbed of the various articles libelled,
and the police, M^ho had found the articles concealed in
a secret hole in the wall of Hamilton's house, with the
exception of one watch, which was found on the person
of the female prisoner, by the female searcher at the
police station.
It was not shewn when or where any of the articles
had been resetted.
The occupation of the male prisoner was that of a
hawker, and his wife usually took charge of the shop
and premises in Edinburgh, where the police found the
articles.
MoNCREiFF, for the female prisoner, contended that
there was no evidence against her. The fact of the
watch having been concealed on her, was perfectly con-
sistent with her innocence, as she might have secreted it
during the search, in order to screen her husband, and
as to the other articles, it had not been shewn that they
were ever in her separate possession, so as to infer any
guilt against her.
AND CIRCUIT COURTS OF JUSTICIARY. 153
The Lord Justice-Clerk directed the Jury, that if No. 17.
•' John
they thought the woman had merely concealed the watch Hamuton
to screen her husband, and had had no concern in the HamiitOTf.
resetting of it, whether as managing the shop or other- High Court,
wise, they must acquit her. No doubt, a married wo- '^^Igl
man was answerable criminally for any act of reset of K«setof
theft of which she was guilty, whether as sole actor or ''^''^^*-
art and part therein. But it would not be enough to
infer that she was so guilty, if, after the offence had been
committed, she endeavoured to assist her husband in
avoiding detection by concealing the article. Every such
case, however, depended on the actual facts, of which
the Jury were to judge.
The Jury found John Hamilton guilty, and the libel
not proven against the woman.
In respect of which verdict of assize, the said John
Hamilton was sentenced to be transported for ten years,
and the said Mary Garden or Hamilton was assoilzied
simpliciter, and dismissed from the bar.
Present,
Feb. 6.
The LoBD Justice-Clerk, 1849.
Lords Moncbeiff and Cockburn.
Her Majesty's Advocate — Craufurd A.D. — E. F. Maitland A.D.
AGAINST
Alexander James Petty Menzies. — Moncreiff.
Falsehood, Fraud, and Wilful Imposition — Forgery. — 1. Direc-
tion to the Jury as to what was necessary to support a charge of
Falsehood, Fraud,, and Wilful Imposition. Held, 2d, That it was
sufficient, in the absence of counter proof, to establish that the
Christian name of the prisoner was different from that which he had
used on the forged instrument, that he had given another name to
the Sheriff, and answered to the indictment framed conform thereto.
3d, That the crime of forgery is committed by the use of a false
I Christian name, if that be used with the intention to mislead.
L
154 CASES BEFORE THE HIGH COURT
No. 18. Alexander James Petty Menzies, was charged with
J. p. Falsehood, Fraud, and Wilful Imposition ; as also, with
-;-!^!l!l- Forgery ; and al^, with Uttering Forged Writings :
1848.' ^^ SO FAR AS (1.) On several occasions between the 23d day of July
■p and 3d day of September 1848, the particular day or days being to
&c. the prosecutor unknown, and within or near the shop or premises in
West Eegister Street of Edinburgh, then and now or lately occupied
by George Vallance, breeches-maker and glover there, you the said
Alexander James Petty Menzies did, wickedly, falsely, fraudulently,
and feloniously, represent and pretend to the said George Vallance,
and to Walter Vallance and George Vallance junior, sons of, and then
and now or lately residing with, the said George Vallance, or to one
or more of them, that you were Mr Lockhart Menzies, a member or
relative of the family of Menzies of Castle-Menzies, in Perthshire, and
an officer of the Third Light Dragoons, and you did by these and the
like false representations and pretences, wilfully and wickedly impose
upon the said George Vallance, Walter Vallance, and George Val-
lance junior, or one or more of them, and did thereby prevail upon and
induce the said George Vallance to advance on credit to you from
time to time, during the period above libelled, clothes and other fur-
nishings to the amount of £27, 19s. 6d., sterling, or thereby, which
you did not pay or account for to the said George Vallance, but ap-
propriated to your own uses and purposes, whereby the said George
Vallance was defrauded and wilfully imposed upon by you the said
Alexander James Petty Menzies : Likeas (2.), on several occasions
between the 23d day of August and 14th day of September 1848, the
particular days being to the prosecutor unknown, and within or near
the shop or premises in or near George Street, Edinburgh, then and
now or lately occupied by the Company or firm of Meyer and Morti-
mer, then and now or lately army and navy contractors and clothiers
there, you the said Alexander James Petty Menzies did, wickedly,
falsely, fraudulently, and feloniously, represent and pretend to John
Mortimer, then and now or lately a partner of the said company or
firm, and then and now or lately residing in or near George Street
aforesaid, and to Donald Munro, then and now or lately clerk to the
said company or firm, and then and now or lately residing in or near
Castle Street, Edinburgh, or to one or other of them, that your name
was Lockhart, and that you were a lieutenant or other officer in the
Seventy-Eight Regiment, and did thereby prevail upon and induce the
said John Mortimer and Donald Monro, or one or other of them, or
other person or persons acting for the said company or firm, to advance
on credit to you, from time to time, during the period last above li-
belled, clothes and other furnishings, and lent cash, to the amount of
£9, lis. sterling, or thereby, which you did not pay or account for to
the said John Mortimer, or to any other person for behoof of the said
AND CIRCUIT COURTS OF JUSTICIARY. 155
company or firm, but appropriated to your owu uses and purposes, No. la,
whereby the said John Mortimer, and the said company or firm, were j_ p_
defrauded and wilfully imposed upon by you the said Alexander Menaies.
James Petty Menzies: Likeas (3.), on the 23d day of August 1848, High Court-
or on one or other of the days of that month, or of July immediately ■^^^'g*'
preceding, or of September immediately following, you the said Alex- '. —
ander James Petty Menzies having written or procured to be written, '""^S^t
a bill of exchange or other similar writing for £30 sterling, bearing to
be dated ' Edinburgh 23* August 1848,' and to be payable two months
after date, and to be drawn by Moritz Cohnert, and to be addressed,
' To Grenville A Lockhart Esq'., 78 Highlanders at Taits Hotel
' Edinburgh,' you the said Alexander James Petty Menzies did, time
last above libelled, and in or near the shop or premises in or near Leith
Street, in or near Edinburgh, then and now or lately occupied by
Moritz Cohnert, then and now or lately jeweller there, and then and
now or lately residing in or near St James' Square, in or near Edin-
burgh, or at some other place in or near Edinburgh, to the prosecutpr
unknown, wickedly and feloniously, forge and adhibit, or cause and
procure to be forged and adhibited, upon the said bill of exchange or
other similar writing, the subscription ' G. A. Lockhart L* 78* Reg^,'
as acceptor, intending the same to pass for and to be received as the
genuine subscription of Graeme Alexander Lockhart, then and now or
lately lieutenant in Her Majesty's 78th Begiment of Foot, then and
now or lately in India, or elsewhere to the prosecutor unknown, or of
some other person of the name of Lockhart to the prosecutor unkuowny
or the same being a fictitious subscription : Farther, time last above-
libelled, and within or near the shop or premises aforesaid, then and
now or lately occupied by the said Moritz Cohnert, you the said Alex-
ander James Petty Menzies did, wickedly and feloniously, use and
utter as genuine, the foresaid forged bill of exchange or other suailap
writing, having thereon the said forged subscription, yxm well knowit^
the same to be forged, by then and there delivering- the same as a
genuine bill to the said Moritz Cohnert, in paymen<t of the price of
various articles of jewellery, and in repayment of various advances of
cash to you by the said Moritz Cohnert : Likeas- (4.), on the 13th
day of September 1 848, or on one or other of the days of that m-anth,
or of August immediately preceding, or of October immediately fol-
lowing, you the said Alexander James Petty Menzies- having written,
or procured to be written, a bill of exchange or other similar writing,
for £4.9 sterling, bearing to be dated 'Edinburgh 13 Sep' 1848,'
and to be payable one mouth after date, and to be addressed, ' To
' Mess Cox & Co. Craig's Court Charing Cross London,' did, time
last above libelled, and in or near the hotel or premises- in or near
Princes Street, Edinburgh, then and now or lately occupied by James
Tait, then and now or lately hotel-keeper, residing these, wickedly
and feloniously, forge and adhibit, or and cause procure to be forged
&e.
156 CASES BEFORE THE HIGH COURT
No. 18. and adhibited, upon the said bill of exchange or other similar writing
Alexander j^gj. ^^^^^ libelled, the subscription ' Lockhart Menzies,' or other si-
Menzies. milar subscription, as drawer and indorser, intending the same to pass
High Court ^"' ^^^ *° ^® received as the genuine subscription of some person of
Feb. 5. the name of Lockhart Menzies to the prosecutor unknown, or the same
'*^' being a fictitious subscription : Farther, time last above libelled, and
Forgery, in or near the hotel or premises aforesaid, then and now or lately oc-
cupied by the said James Tait, you the said Alexander James Petty
Menzies did, wickedly and feloniously, use and utter as genuine the
forged bill of exchange or other similar writing last above libelled,
having thereon the said forged subscriptions, you well knowing the
same to be forged, by then and there delivering the same, or causing
or procuring the same to be then and there delivered to the said James
Tait, in payment of an account for board and lodging incurred by you
to the said James Tait.
The pannel was indicted under the name he gave to
the Sheriff when he emitted his declaration ; and the
Public Prosecutor did not adduce any other evidence
to show that his name was not Lockhart Menzies, as
subscribed by him on the bills.
The evidence of the first charge was as follows : —
Walter Vallance. — One of our shopmen was sent for on 24th
July, to measure a gentlemen at Tait's Hotel for trowsers. The pri-
soner came to the shop a few days after : he was then wearing the
trowsers made on account of this order. He said we might as well
take his address in the country, which was Lockhart Menzies, Esq.,
Rannoch Lodge, Perthshire. This was all that took place. He
ordered more clothes at that time. I often saw him after. Shortly
before the Agricultural Ball, he said he thought of going to the ball
in the uniform of his regiment. I said what regiment ? he said. Third
Light Dragoons. He did not get a uniform, but afterwards came and
ordered a dress suit. He ordered a coat of the uniform of a racing
club. The account shown, £27 : 19 : 6, is ours. During his dealings,
we believed him Mr Lockhart Menzies, and an officer of the Third.
We made furnishings in consequence. We knew Rannooh Lodge be-
longed to Sir Robert Menzies, and believed hira a relation. We be-
gan to suspect, because a brother tradesman said he had received the
name of Lockhart from him.
George Vallance corroborated the above, and deponed that the
prisoner in August said he was in the Third Light Dragoons, and it
would cost him £300 to exchange into a regiment at home.
MoNCREiFF. — :It was a point of law, calling for direc-
AND CIRCUIT COURTS OF JUSTICIARY. 157
tion by the Court, whether, when a person signed his No. i^s^^
own surname, but used a prefix which was not his own, J. p.
Af 6112168
that was forsrery. The question was not whether he —
1 • 1 , .1 1 111 HighCourt.
was christened by a particular name, but. whether he Feb. s.
committed the act with the intention of forgery. It was '—
not the case of a fictitious signature, but that "of assum- °&t^^'
ing a prefix which he thought better than his own. This
was often done most innocently ; and in order to estab-
lish the prisoner's guilt, the Jury must believe that it
was done by him in circumstances where, if he had
signed his own christian name, credit would not have been
given him. But farther, the prosecutor had failed to
show, except by the prisoner's declaration, which alone
was not proof, that the prisoner's name was riot Lockhart
Menzies.
The Lord Justice-Clerk, in summing up, said — It is
contended there is no proof that the prisoner is not
Lockhart Menzies. This is not the question in issue.
He is indicted under a particular name, and answers to
it. When examined, he says that is his name ; and it
is clear, if a person gives a name to the Sheriff as his
name, the prosecutor is entitled to indict him under
that name. If the defence is, that that is not his name,
it was his business to have proved it, supposing that it
could have availed him.
The next observation I have to make to you is, that the
most successful means of making a false representation, is
not to volunteer such a statement as " I am Mr Lockhart
Menzies, a relation of Sir Robert, and an officer in the
Third Light Dragoons." It is by the way and manner
in which circumstances are conveyed to the mind, incor-
rect in themselves, but which the party knows will have
weight with the persons interested. It is sufficient,
therefore, that the representation is conveyed to the
mind in an indirect manner, by conduct calculated to
leave the impression that the person is what he holds
himself out to be. No doubt, it must be proved that
some person was thereby imposed upon and trusted oii
158 CASES BEFORE THE HIGH COUKT
No. 18. that account. In this case, though the witnesses were
J. p. not directly asked whether they trusted in consequence
- of this representation, you will consider if this may be
Feb. sT*" sufficiently inferred, as, except the first two items in the
^"^^' account of Vallance, all the particulars of the account are
Fo^ery,, incuj-j-eij after the 3d August when the statements were
made. That is the evidence on the first charge, and you
who understand business, will say whether the represen-
tation was intended to mislead the tradesman. It is not
necessary that the account should be commenced, if it is
continued on the credit that the prisoner is Mr Lockhart
Menzies, and an officer of Third Light Dragoons.
In regard to the question of forgery, I must tell you,
it is not a question about the credit given in the hotel.
It is a question about forging a name to a bill, and
uttering the same as genuine. The charge is of forging
a name that he knows to be fictitious. It is said, that
in signing Lockhart Menzies, whether he took a wrong
Christian name or not, he signed his own surname, and
this is not a fictitious signature, and so the crime of for-
gery is not made out. But this bill is written and ad-
dressed by him ; he giving as the place of payment the
office of Cox & Co. He signed Lockhart Menzies, and
if you believe that the object of that was to convey to
Tait and his clerk the impression that he was Mr Lock-
hart Menzies, who had funds at Cox's, that is the crime
of forgery. For forgery and uttering are completed by
subscribing a name of a person supposed to have money
at a banker's, and uttering it as such. Therefore, in
point of law, if you are satisfied that the name subscribed
to the bill was intended to be that of another person
than himself, and who was supposed to have money at
Cox's, then the crime of forgery is complete.
The Jury unanimously found the pannel guilty as
libelled.
In respect of which verdict of assize, he was sentenced
to be transported for seven years.
AND CIKCUIT COVETS OF JUSTICIARY. 159
Present,
The Lord Justice-Clerk,
Lords Moncreiff, Medwyn, Cockbubn, and Wood. 1B49.
John Meekison and Tutor, Suspenders — Deaa.
AGAINST
Donald Mackay, Respondent — Neaves.
("Sequel of Case reported, ArHey, p. 503.
Police Court — Suspension. — Circumstances in which it was held to
be incompetent to try children, of the ages of ten and twelve, in the
Police Court, in the absence of their parents, whose residences were
well known.
This case came to be disposed of on the commissioner's no is
report of the proof. ,S°or
Deas, for the suspenders, contended, — 1. That it was '°- Mackay.
established by the proof, that the parents of the child ^^^jj,*^""'"
were excluded at the time the original complaint was i8*»-
heard. 2. That, whether that was established or not, it suspension,
was incompetent to proceed to convict a child at the age
of ten years of such an offence, summarily, and in the
absence of his parents, whose residence was well known
to the police.
Lord Medwyn. — This is a very painful case. The
question for us to determine is, whether the complainer's
parents were excluded from the police office at the time
he was convicted. If this had been done, no doubt it
would have been enough to justify a suspension. I, how-
ever, do not think it was. It was the duty of his parents
to be present at the first hour when the magistrates sat,
and to continue in attendance until the case was brought
on. It is not shewn that there was any irregularity in the
way of bringing on the case, and I cannot say that there-
was any duty on the part of the police, either to advise
her to remain until the case was called^ or to give her^
160 CASES BEFORE THE HIGH COURT
No. 19. any particular introduction into the office when she came
and Tutor back with her witness. On the whole, I cannot think
D. Mackay. , . , i i i
— ; she was improperly excluded.
rib. is."^' Lord Cockburn. — The proof, no doubt, is insufficient
^"^^' to establish an exclusion of the complainer's parent. So
Suspension. ^^^ ^^^ grouuds of suspeusion are not only not proved,
but disproved. But it is my duty to say, that this is
not a case which ought to have been sent to the Police
Court. Suppose, for argument, that the hour at which
what is styled the offence was committed, was half-past
three, during public worship, what does that matter ?
Here are two children, or creatures, only about ten years
old, found playing at marbles, and rejoicing at the skill
they shewed in shooting into a hole. They are taken
hold of by the police, and although he knew the parents,
instead of seeking them, he takes the children and locks
them up till next morning, amongst the worst vagabonds
of the town. I feel it incumbent upon me as a judge
to say, that I protest against such a proceeding. It was
an abuse to take and lock up two such children when
their parents were well known. It was an outrage on
all proper feeling, and especially on all those feelings on
which it professed to proceed, in reference to the due
observance of the Sabbath. The crime committed by
the officers was infinitely greater than the one imputed
to the infants ; and I hope never again to see Sunday
protected by such unchristian proceedings. On these
grounds, I am for sustaining the suspension.
Lord Wood. — The proof establishes that the com-
plainer's mother was not refused admittance to the office ;
but I concur with Lord Cockburn, on the general point
of the impropriety of the whole proceedings. No doubt,
cases might be supposed where the interference of the
police was absolutely necessary, even against children of
their age ; but, in my opinion, it was exceedingly impro-
per to take these children to the police office for such an
offence, lock them up the whole of Sunday evening, and
try theni on the following morning, in the absence of
AND CIRCUIT COURTS OF JUSTICIARY. 161
their parents, whose residence' was well known. I en- no. is.
tirely disapprove oi such a mode of proceeding, and all ^a Tutor
that followed thereon. "• ^^"W-
The Lord Justige-Clerk.— I think the proof estab- ^F^b!^i'^'-
lishes that the mother applied for access and was re- 1^49.
fused. I think this established by the real and posi- Suspension,
tive testimony in the case. I also agree in quashing the
sentence, as an illegal and oppressive proceeding, on the
grounds stated by Lords Cockburn and Wood. I con-
sider it extremely wrong on the part of the police to
have proceeded to try and convict these children in the
absence of their parents. These Inferior Courts must be
restrained when they proceed to punish such young chil-
dren, in such a way. It is right to make it known
that we shall quash all convictions so obtained. I sus-
tain the complaint, on the ground of the express terms in
which it was prepared ; but no conviction ought ever to
have followed on the evidence which was adduced, and
no magistrate ought ever to have encouraged any police-
man to prefer such a complaint.
Lord Medwyn. — I also concur in condemning the
proceedings. The police, knowing the parents of the
children, ought to have gone to them, and not have
taken the children to the office, or tried them at all.
The Court passed the note of suspension.
WoTHBRSPooM & Mack, S.S.C. — Lockhabt, Huntek & Whitehead, Agents.
John Lockie, Suspender — Deas.
AGAINST
John M'Whirteb, Kespondent — Neaves — Aytoun.
Statute. — Held, that under the 203d seetiou of the Glasgow Police
Act, that it was necessary to libel that the coals had been sold and
delivered within the limits of the act, and a sentence proceeding on
an alternative libel suspended.
162
CASES BEFORE THE HIGH COURT
No. 20. This was a certified Appeal from the Circuit Court at
M'Whirter. Glasgow. It arose under the following circumstances : —
HighCourt. By the Glasgow Police Act,^ the Commissioners of Police
Feb. IS. "^ °
1849.
Suspension.
1 By the Act 6th & 7th Vict. c. 99, § 203, it is enacted, ' That
it shall not be lawful to any person to sell or dispose of coals -within
the limits of this act, except by weight ; and the said Board of Com-
missioners shall be, and they are hereby empowered and authorized
to erect, so far as not already done, and to maintain steel-yards,
scales, or other weighing-machines, upon, or adjacent to the different
roads or streets, within, or leading to the said limits, or at any other
convenient place, for the purposes hereinafter mentioned, or to grant
powers to others to that effect, and to appoint proper persons to at-
tend the same, with suitable allowances for their trouble ; and to
order and appoint every cart or waggon employed for the carriage
of coals for sale within the said limits, to be numbered and weighed,
and recorded in a book to be kept for that purpose within the said
limits, under the direction of the said Board of Commissioners, and
the number and tare to be painted or inscribed on a conspicuous part
of such cart or waggon, and in such manner as the said Board shall
direct ; and no cart or waggon shall be used in the carriage of coals
for sale, until the weight or tare of such cart or waggon shall be as-
certained, recorded, and inscribed as aforesaid ; nor be afterwards
altered in the weight or tare thereof, further than may be occasioned
by wet roads, under a penalty not exceeding twenty shillings ; and
every such cart or waggon loaded with coals for sale or delivery,
(except for shipment at the Broomielaw) within the said limits shall
be weighed at the said steel-yards, or weighing-machines, and the
weight of the coals, and of the cart or waggon, and also the time of
such weighing, shall be marked on a ticket to be delivered to the
driver ; and the person having the charge of such steel-yards, or
weighing-machines, shall exact from the driver the sums following,
viz., for each cart not exceeding twelve hundred weight, one penny :
for each cart and a half, not exceeding eighteen hundred weight, three
halfpence ; and for each waggon, not exceeding twenty-four hundred
weight, twopence, for weighing the coals, and delivering tickets as
aforesaid, and for erecting and keeping in repair the said steel-yards
and weighing-machines ; which sums shall be repaid to the drivers
by the purchasers of the coals, or persons to whom the same are de-
livered, on the ticket thereof being produced ; and the property of
such steel-yards or weighing-machines, shall be, and is hereby vested
in the said Board of Commissioners : And if any carter or other
person shall bring, within the limits of this Act any cart or waggon
with coals, exceeding five hundred pounds weight, and shall sell or
deliver, or attempt to sell such coals, without first having the same
AND CIRCUIT COURTS OF JUSTICIARY. 163
are authorized to erect and maintain steel-yards for the No. 20.
weighing of coals, and every person attempting to sell or M'Wuirte'r.
deliver, within the limits of the act, coals in quantities High Court.
Feb. IS.
— _— . 1849.
' weighed, and a ticket procured as aforesaid, such carts or waggons Suspension.
' may be seized, and the coals therein may be declared forfeited, and
' the proceeds applied in the same manner as the penalties under this
' Act, but the carts or waggons shall be returned to the owner or
' driver ; and if such coals shall have been sold and delivered, without
' having been weighed, and a ticket procured as aforesaid, such driver
' may be subjected in a penalty not exceeding forty shillings, besides
' having the coals confiscated ; and it shall be lawful to the Superiu-
' tendent and officers of police to seize any cart or waggon with coals,
' which have not been weighed, and a ticket procured, as aforesaid,
' and to detain the same until the penalty and the expenses attending
' the proceedings shall be paid.' (§ 204), ' That it shall be lawful to
' the said Board of Commissioners, to provide, furnish, and maintain,
' such a number of portable or moveable machines for weighing coals
' as they may deem necessary, to be kept in convenient places within
' the said limits, in order that the inhabitants may have access to them
' for the purpose of reweighing their coals, at their own expense, if
' they shall be so inclined ; and to employ proper persons to attend
' such machines, and to establish the rates to be payable for such re-
' weighing ; and it shall be lawful to the Superintendent of police, or
' Inspector of weighing-machines, or any other officer, to cause coals
' oflfered for sale, or for delivery, to be reweighed, and to require the
' carter to produce the ticket thereof, as a check on the conduct of
' carters and others — such reweighing being always done free of ex-
' pense.' (§ 279), ' That no order, judgment, record of conviction, or
' other proceeding whatsoever, concerning any prosecution by virtue
' of this Act, or of any Act herein recited, shall be quashed or vacated
' for any misnomer or informality ; and that all judgments and sen-
' tences pronounced by the said Magistrates, or any of them, under
' this Act, shall be final and conclusive, unless appealed from in man-
' ner hereinafter provided.' (§ 280), ' That if any person shall feel
' aggrieved by any sentence pronounced by the Magistrates, under
' this Act, it shall be lawful for such person to appeal to the Court of
' Justiciary, at the next Circuit Court to be held at Glasgow, or else-
' where, for the Western Circuit, in the manner and under the rules,
' limitations, and conditions contained in an Act passed in the twen-
' tieth year of the reign of His Majesty King George the Second, in-
' tituled, ' An Act for taking away and abolishing Heritable Juris-
" dictions in Scotland ;' and it shall not be competent to appeal from,
' or to bring the judgment of the Magistrates under this Act, under
' review, by advocation, suspension, suspension and liberation, or re-
164 CASES BEFORE THE HIGH COURT
No. 20. exceeding 5 cwt., is required to have them weighed at a
M'wwrte'r. steel-jard, and to pay twopence for the ticket which is
High Court, given him of the weight.
^\si9^' '^^^ suspender was a person regularly employed to
Suspension. ^^^<i^ coals (which had been previously bought) from the
coal-hill, by one of the manufacturers of Glasgow, within
the limits of the act. The Commissioners insisted that
as the place to which the coals were brought was within
the limits, they must be weighed and paid for at two-
pence per load. The suspender having refused to com-
ply with their requirements, the following complaint
was presented against him by the respondent : —
Police Court, Glasgow, Central District, 1st Fehruary 1848.
' Unto the Honourable the Magistrates of Glasgow, the com-
' plaint of John M'Whirter, Interim Procurator-Fiscal of
' Court, for the public interest,
' Charges John Lockie, carter, Parkhead, near Glasgow, with hav-
' ing contravened the 201st section of the Act entituled, ' The Glas-
" gow Police and Statute Labour Act,' 6th and 7th Vict. c. 99 : In
' so far as, on Saturday the 22d January last, the said John Lockie
' did briug within the limits of the said act four carts or waggons
' with coals — the coals in each of the said carts or waggons exceeding
' 500 pounds weight, and did on the said date, in or near Lancefield
' Street, Anderston of Glasgow, and within the said limits, sell or
' deliver 'the said coals to Messrs Fulton and Neilson, founders,
' &c., in said Street, without having first had the same weighed at
' one or other of the public weighing-machines provided for the pur-
' pose, and without having procured a ticket with the weight of the
' coals, and of the carts or waggons, and also the time of such weighing
' marked thereon, as required by the foresaid section of the said act ; for
' which contravention, tlie defender, on being legally convicted, ought
' duction, or in any way whatever, other than is hereby provided for,
' saving always any right of appeal, or other mode of review autho-
' rized by any other Act, under which it is by this Act made lawful
' for the said Magistrates, or any of them, to try crimes or offences :
' Provided always. That no such appeal shall operate as a stay of
' execution in cases where the sentence or decree awards imprison-
' ment, unless on sniEcient caution for the appearance of the party, in
' such manner as the Judge shall direct, and that without prejudice in
' either case to the caution or security required by the said recited
' Act.'
AND CIRCUIT COURTS OF JUSTICIARY. 165
' to be punished in terras of law, to deter others from committing the jj^^ 20.
' like contraventions in time coming. Lockie «.
' John M'Whirter.' M-Whirter.
High Com-t.
Feb. 15.
When this complaint was heard, the following sen- i^^^-
tence was pronounced : —
' The Bailies find unanimously, from the admission of the defender,
' and the proof adduced, that the defender has contravened the 201st
' section of the Statute, and is liable in the penalty thereby imposed ;
' modify the same to ten shillings, and decern.
(Signed) ' Robt. Stewart.
' Robert Smith.
' David Smith.
' John Gilmour.'
Lockie appealed to the Circuit Court ; when it was
objected that the act having dispensed with any record
in the inferior Court, it was impossible to ascertain
whether the conviction was rightful or otherwise ; inas-
much as that must be determined, not by the evidence
which might competently be adduced, but by what was
adduced when the case was heard.
Lord Mackenzie certified the case, which was now
heard.
Deas, for suspender, contended, that as the terms of
the. statute only rendered it imperative on the carters to
have the coals weighed when the sale or delivery was
within Glasgow, it had no application to the suspender's
case, who was a special servant sent out to receive coals
which had been previously bought, and of which he re-
ceived delivery beyond the boundaries. The coals were his
employers, and so he told the bailies, but they miscon-
trued his statement of having been sent to bring coals
previously bought, into a confession of guilt. It was then
said the Court could not get at the facts, as no record
was kept. That would render review nugatory. Every-
thing necessary to give effect to review was included in
the right of appeal; Lord Moncreiff's opinion in
M'PhaiVs case, Nov. 20. 1837, Swinton, vol. i. p. 583.
166 CASES BEFORE THE HIGH COURT
No. 2i). In this case, the question was, had not the Magistrates
M'Whirter. fined iu a case where they had no jurisdiction; and where
High Court, no offence was committed, as both the sale and delivery
^1849.^" took place beyond the limits ?
Suspension Neaves, for respondent — The case was important. If
any person convicted could, under the 280th section, ap-
peal on the merits, and have an enquiry into what took
place at the trial, it was difficult to understand why a
record of the evidence was dispensed with by the statute.
The legislature, by dispensing with all record of evidence,
practically excluded review on the merits. There was no
means whereby it could be effected, as the enquiry must
be limited to what took place at the original hearing.
No doubt insulated facts, such as improper admission or
rejection of a witness might be enquired into, but no
case had said that all the merits could be gone into
again. The only effect of the appeal given by the
statute was to put the Court of appeal in the same posi-
tion as the Bailies, and not to enable them to lead a
fresh proof
The Lord Justice-Clerk. — Do you contend we can-
not enquire into the evidence, when an allegation is
made that, on the merits, the inferior Court had no juris-
diction ?
Neaves. — I contend that all carters are subject to the
tax, and that having been convicted in part on his own
confession, the Court cannot enquire into the terms in
which the confession was made.
Deas, in reply — The words of the complaint are dif-
ferent from the clause of the statute on which it pro-
ceeds. The words applicable to completed transactions
are, ' if such coals shall have been sold and delivered ;'
whilst the complaint on which the conviction proceeded
is, that the suspender did ' sell or deliver the coals.'
That is an alternative not warranted by the statute.
Lord Moncreiff. — That is enough, the prosecutor
was not entitled to insert in his complaint an alternative
not contained in the statute.
AND CIRCUIT COURTS OF JUSTICIARY. 167
The Lord Justice-Clerk. — I concur ; that objection is No. 20.
insuperable. At the same time, I think with Lord M'Whirter.
Mackenzie, that the statute having given a power of ap- High Court,
peal, has by implication given everything which is neces- fsis. '
sary to enable the Appeal Court to explicate its juris- suspension.
diction. It does not follow that we are confined to any
particular mode of making the enquiry. We might re-
mit to the Magistrates to pronounce a special inter-
locutor, on which we could afterwards proceed. In the
present instance, I think we should pronounce an inter-
locutor, which will indicate our opinion that the re-
spondent cannot prosecute, except where the sale and
delivery are both within the limits, and to this I think
the suspender entitled.
The following interlocutor was pronounced : —
' Find that the complaint is not laid in conformity
* with the statute, inasmuch as it states that the appel-
' lant did contravene the statute, in so far as he did sell
' or deliver coals within the limits of the city of Glas-
' gow, and is liable to the statutory penalty in respect
* thereof, while the penalty is imposed only in the case
* of coals being sold and delivered within the said limits ;
' therefore sustains the appeal.'
John Leishman, W.S. — Charles Fishee, S.S.C. — Agents.
1 68 CASES BEFORE THE HIGH COURT
Present,
Feb. 17. The Lord Justicb-Genebai,,
1848.
Lord Justice- Clerk,
Lords Mackenzie, Moncreifp, Medwyn, Cockburn, and Wood.
William Graham, Suspender — The Lord Advocate (^Butherfurd) — ■
Moncreiff- — Inglis.
Richard John Moxey, Eespondent — Dean of Faculty {M'Neill) —
Neaves.
Statute— ;-SusPENSiON. — Circumstances in which it was held, that the
decision of the Police Magistrate was final, and that suspension of
his decree was incompetent.
No. 21. This was a suspension of a sentence pronounced in
'^Mox^"' *^® ^oWae Court of Edinburgh on the 19th of January
Hi h Court ^^^^' proceeding on the following complaint.
Feb. 17.
^ ' Unto the Honourable the Magistrates of Edinburgh, or any
Suspension. . ^f ^^^^^ officiating as Judge in the Police Court, Edin-
' burgh, — The Complaint of Richard John Moxey, Superin-
' tendent of Police, and Procurator-fiscal of Court for the
' Public Interest.
' Humbly Sheweih — ^That William Graham, now or lately residing
' in High Street, in or near Edinburgh, who is licensed to sell ale,
' beer, or exciseable liquors, did, in contravention of the Edinburgh
' Police Act, 1848,^ upon the 13th day of January 1849 years, or
1 This statute enacts by § 84, ' Whereas it is expedient that in cases
arising under this Act the proceedings shall be attended with as little
expense and delay as possible, be it enacted, That all actions, pro-
secutions, and proceedings before the said Police Court, shall com-
mence by a complaint, written or printed, or partly written and
partly printed, at the instance of one or other of the said Procura-
AND CIRCUIT COURTS OP JUSTICIARY. 169
about that time, after the hour of eleven o'clock at night, within the No. 21.
premises occupied by the said accused, situated in High Street, in Jiox^"'
or near Edinburgh, the same as then used and occupied by him, beinjr „. . „
. . , ,, , , . •, , ^ , ■ ■, ■ High Court,
a spirit shop, cellar, yault, or other similar place, suffer drinking or Feb. 17.
tippling. '»*9-
Suspension.
tors-fiscal, or at the instance of persons duly authorized to act for
them, in which latter case such proceedings, though subscribed by
any such persons, shall be commenced and conducted throughout in
name of the said Procurators-fiscal respectively ; and (with the ex-
ception of complaints against Chain-droppers, Thimblers, loaded Dice-
players, and ofienders of that description) such complaint, in all
cases of theft, or of reset of theft, or of falsehood, fraud, and wilful
imposition, or of breach of trust and embezzlement, and the convic-
tion following thereon shall bear that the sum of money or the value
of the article stolen, resetted, obtained by falsehood, fraud, and wilful
imposition, or embezzled, does not exceed ten pounds ; and it shall
not be competent thereafter to the person accused, (except where an
oflTer shall be made at the time,) to prove that the money or article
stolen, resetted, obtained, or embezzled exceeded in value the sum
of ten pounds ; and the whole other procedure in the said Court shall
be conducted summarily viva voce, and without written pleadings ;
and no other record shall be kept of the proceedings of the said
Court except the complaint and the judgment pronounced thereon ;
and it shall not he competent to any party who shall appear at the
bar of the said Police Court to answer to any complaint, to plead
want of due citation or informality in the warrant or execution.'
(§ 86), ' That if it shall appear either in the preliminary investigation
of the charges against any person accused of having committed any
crime, delinquency, or offence within the limits of this Act, or
during his trial in the said Police Court, that such person has been
guilty of, or is charged with any of the crimes denominated the pleas
of the Crown ; (videlicet,') murder, robbery, rape, and wilful fire-
raising, or with the crimes of stouthrief, or of theft by housebreaking,
or of housebreaking with intent to steal, or of simple theft to an
amount exceeding ten pounds, or of theft by opening lockfast places,
or of theft aggravated by being habit and repute a common thief, or by
having been twice previously convicted of theft, or of reset of theft to
an amount exceeding ten pounds, or of reset of theft aggravated by
having been twice previously convicted of that crime, or of falsehood^
fraud, and wilful imposition to an amount exceeding ten pounds, or
of falsehood, fraud, and wilful imposition, aggravated by having been
twice previously convicted of that crime, or of breach of trust and
embezzlement to an amount exceeding ten pounds, or of breach of
trust and embezzlement, aggravated by having been twice previously
convicted of that crime, or of assault to the danger of life, or of
M
170 CASES BEFORE THE HIGH COURT
No. 21. ' -And the said accused has been previously convicted of the above
Graham «. ' offence, conform to sentence of this Court, dated the 22d day of
°^^' ' December 1848.
^F b^lT^*' ' ^' ^®' *'l'6i'sfo''S) craved that warrant be granted for summoning
184.'). ' the said accused to answer to this complaint, and for citing witnesses
Suspension. ' ^ ~ '
' asault whereby any limb has been fractured, or of assault with any
' knife or other lethal instrument, where effusion of blood has followed,
' or of assault aggravated by two previous convictions for that crime,
' or of assault with intent to ravish, or of attempt at wilful fire-raising,
' or of culpable homicide, or of forgery, or of uttering forged bank or
' bankers' notes, it shall not be competent for the Procurator-fiscal, or
' those acting under or for him, to insist in a prosecntion against such
' person in the said Police Court, but the Judge shall commit the per-
' son accused to the Prison of Edinburgh for examination ; and the
' Procurator-fiscal shall forthwith give notice of such commitment to
' the Procurator-fiscal of the county of Edinburgh, or, in the event of
' the offence charged having been committed within the city of Edin-
' burgh, or liberties of the same, to the Procurator-fiscal of the said
' city, in order that such person may be proceeded against conformably
' to lave : Provided always, that the aforesaid provision shall not
' apply to chain-droppers, thimblers, loaded dice-players, and offenders
' of that description, whom the Judge is hereby specially empowered
' to try and sentence, whatever may be the amount of the sum
' specified in the charge against them, or however often they may
' have been previously convicted.' (§ 107), ' That no order, judgment,
' record of conviction, or other proceeding whatsoever, concerning any
' prosecution instituted in the said Police Court, by virtue of this Ant,
* shall be quashed or vacated for any misnomer or informality ; and
' all judgments and sentences pronounced by the Judge shall be final
' and conclusive, and not subject to suspension, or advocation, or ap-
' peal, or any other form of review, or stay of execution, unless on the
' ground of corruption, malice, or oppression on the part of the Judge,
' or of such deviations in point of form from the statutory enactments
' as the Court of Review shall think took place wilfully, or of incom-
' peteney, including defect of jurisdiction of the Judge, and which
' suspension, or advocation, or appeal, or review, or stay of execution,
' must be presented to the High Court of Justiciary within fourteen
' days after the date of the sentence complained of.' (§ 135), ' That
' if any person who is licensed to sell ale, beer, or exciseable liquors,
' shall, within any shop, house, office, or other premises occupied by
' him suffer riotous or disorderly conduct ; or shall harbour thieves,
' prostitutes, or disorderly persons, or shall suffer men or women of
' notoriously bad fame, or dissolute boys or girls, to meet or assemble
' therein ; or shall permit or suffer any unlawful games therein, where-
' by the lieges may be cozened and cheated ; or shall, within the shop
AND CIRCUIT COURTS OP JUSTICIARY. 171
for both parties; and that {he said accused Be thereafter punished No. 21.
according to law, or that such other judgment he given as the case ^J?*'^'" *•
may require. — — -
' According to Justice,' ^^eb^t^'
(Signed) ' E. J. Moxby, Superintendent.' 1849.
' Edinburgh, \&th January 1849.* SuspenSiou.
house, office, or other premises occupied by him, suffer any drinking
or tippling at any hour earlier than one o'clock in the afternoon or
during the hours of divine service on Sabbath days, or on other days
set apart for public worship by lawful authority, (except in inns and
hotels licensed, and at railway refreshment rooms licensed and open
for the accommodation of passengers only,) such person, on being con-
victed of any of the above offences, shall be liable to a> penalty not
exceeding five pounds; and the Judge may further ordain sucii per-
son to find security for good behaviour for such length of time, not
exceeding twelve months, and to such extent, not being less than ten
pounds, and not exceeding fifty pounds, as he shall sed meet ; and in
the event of such caution not being found within a reasonable time,
to be specified in the order, it shall be lawful to the Judge to deprive
such person of his licence ; and if any such person shall be convicted
more than once of any of the said offences, the Judge shall in like
manner, either award the said fine, and order renewed security, or
deprive such person of his licence, as he may judge proper : saving
and reserving the rights of all persons to enforce the due observance,
and to prevent the profanation of the Sabbath day, otherwise, ac-
cording to the laws and practice of Scotland.' (§ 136), ' That if any
person licensed as aforeswd shall suffer drinking or tippling within
the premises occupied by him, or sell ale, beer, or exciseable liquors
on anj' day after eleven o'clock at night, or before six o'clock in the
morning, or on Sabbath days or on any other day set apart for
public worship by lawful authority, at any hour earlier than one
o'clock in the afternoon, or during the hours of divine service, in the
case of a spirit shop, cellar, vault, or other similar place, such person,
on being convicted thereof before the Judge, shall for each offence
be liable to a penalty not exceeding five pounds, and may besides,
in the case of a second or other subsequent conviction, be deprived
of his licence : Provided always, that nothing contained in this
enactment shall apply to railway refreshment-rooms licensed and
open for the accommodation of passengers only.' (§ 137), ' That if
any person licensed as aforesaid shall supply any sort of exciseable
liquors to any boy or girl apparently under fourteen years of age, to
be consumed by such boy or girl within his shop or cellar, or any
other premises occupied by him, such person shall be liable, on being
convicted of a first offence, to a penalty not exceeding twenty
shillings ', upon conviction of a second offence, to a penalty not ex-
172 CASES BEFORE THE HIGH COURT
Graham't ^'^ advising this complaint the presiding Magistrate
Moxey. pronouuced the following sentence : —
High Court.
Feb. 17. « Edinburgh, \Mh January 1849. — The Judge finds this complaint
" ' proved against the accused by evidence adduced, aud finds said ac-
Suspension. t cused guilty accordingly ; therefore fines and amerciates said accused
' in the sum of £5 sterling, payable to the Clerk of Court ; sentences
' and adjudges said accused to be incarcerated in the prison of Edin-
' burgh, therein to be detained until said fine be paid, but not exceed-
' ing twenty days from this date ; and grants warrant to officers of
' Police to incarcerate the said accused in said prison, therein to be
' detained accordingly.'
(Signed) ' J. H. Stott.'
Graham suspended, and, along with the note of sus-
pension, produced, as an appendix, the grounds of deci-
sion as read from the bench at the time of pronouncing
sentence, which are here printed, as fully explaining the
case.
' The accused in this case is charged with having, in contraven-
' tion of the Edinburgh Police Act, 1848, upon the I3th January cur-
' ceeding forty shillings ; and upon conviction of a third or other sub-
' sequent ofience, to a penalty not exceeding five pounds, besides de-
' privation of his licence.' (§ 138), ' That if any person licensed as
' aforesaid shall, within the premises occupied by hira, knowingly
' harbour, entertain, or suffer to remain therein, any ofiicer, constable,
' or other person belonging to the said police force during any part of
' the time appointed for his being on duty (unless such officer, con-
' stable, or other person shall be there for the purpose of quelling dis-
' turbance, or otherwise in the discharge of his duty,) or if any person
' shall supply any such officer, constable, or other person with liquor
' when upon his station, or in any shop, cellar, house, or other place,
' during his time of duty, such person so offending shall for each such
' offence be liable to a penalty not exceeding five pounds.' (§ 162),
' Whereas encouragement is given to dissolute persons to remain in
' and loiter about the streets at late and unseasonable hours, by
' keepers of shops, in which dressed provisions are sold, keeping or
' having the same open at late hours in the night, and early hours in
' the morning J be it enacted. That no keeper of any such shop shall
' open, or iave open,'his shop at an earlier hour than five o'clock in
' the morning, or a later hour than twelve o'clock at night, and if any
' person shall offend herein, he shall, upon conviction before the Judge,
' for every such offence be liable to a penalty not exceeding forty
' shillings.'
AND CIRCUIT COURTS OF JUSTICIARY. 173
' rent, after the hour of eleven at night, within the premises occupied No. 2).
' by hiin, situated in High Street, the same as then used and occupied ^^^'^ "•
■ by him, being a spirit shop, cellar, vault, or other similar place, suf — ; —
■ fered drinking or tippling. He is further charged with the aggra- p^j, j^^
■ vation of a previous conviction for the same offence. 1849.
' It has been proved, that the house for which Graham obtained his Suspension.
' license is the third fiat from the ground, consists of six apartments,
• and contains three beds, two of which are occupied by the tenant
■ and his family, the third being kept for the use of any person who
■ may apply, such as commercial men, who sometimes frequent the
• house. In addition to the third (the licensed) flat, Mr Graham oc-
' cupies a lower storey, which, though belonging to a different pro-
■ prietor, communicates with the former by a door connecting the
■ two, and contains two apartments, — namely, a double-bedded room
• and a sinarle one, with a laundry, all passing through each other,
■ which are used by visitors. On Saturday last, there were seventy-
■ four persons in the licensed house, engaged in drinking or tippling,
■ after the hour of eleven at night, of whom three were in the act of
' being supplied with viands, the remaining seventy-one being en-
' gaged in drinking or tippling only. They were distributed through
' the house, there being thirty-one in one apartment, twenty-Jive in
' another, seven in a third, eight in a fourth, and the three engaged in
' eating, were appropriately enough found seated in the kitchen.
' They were proved to have been a mixed company, and had not met
■ for any common object, except that in which they were engaged for
■ the moment. The aggravation of the offence charged was admitted.
' On the part of the accused, it has been proved that the house
' bears the name of ' Graham's Anchor Hotel,' — a name, however,
' which is only of recent origin — that it is respectably conducted on
the same principle as an ordinary tavern or hotel — that dinners and
suppers are occasionally supplied, and that on the day in question,
a party of individuals, consisting of from sixteen to eighteen, whom
the witness adduced designated as a supper-party, had assembled in
the house about half-past five, and left about half-past eight ; al-
though a few might have been there and mingled with those who
were found after eleven.
' It was contended on the part of Mr Graham, that his house being
neither ' a spirit shop, cellar, vault, or any other similar place,' is
excluded from the operation of the statute, and that the Magistrates
had no right of jurisdiction.
' The duty imposed on the Magistrates, is to carry into effect the
objects intended by the Legislature, as these are expressed in the
statute. Now, the object expressed and intended by the 136th
clause of the Act, is to prevent tippling or drinking and the sale of
exciseable liquors in licensed houses after the hour of eleven at night
on week days, and earlier than one o'clock on Sabbath-days, &c,
174 CASES BEFORE THE HIGH COURT
No. 21. ' The clause at its outlet is quite general in its terms as to the places
^M^*""' ' where the offence may be committed, to. which its provisions are
-: '— ' intended to apply, the words being ' within the premises occupied
J^eb, 17. " " V bim;' namely, the party licensed. So general are its terms,
1849. ' that, in order to take from beyond its operation railway refreshment
Suspension. ' rooms, a special clause of exemption is inserted, shewing the gene-
' ral application of the clause, even to premises like these, had the}'
' not been specially selected for exemption.
' But it is contended, that the general teqns of the clause are quali-
' fied by the words, ' spij-it shop, cellar, vault, or other similar place,'
' which occur in a subsequent part of the enactment. It is argued,
' that these words must be construed literally, and that no house whose
' general description does not fall within the category enumerated,
' can be held subject to the provisions of the statute.
' It appears to the Magistrates, that a house or other premises are
' to he kuown and described by what is done within their precincts.
' The meaning of the word shop is, ' a place where anything is sold,'
' and a spirit shop is a place where spirits are sold. If the keeper of
' a licensed house, used in general, wholly or partially for any pur-
' pose, say for holding public meetings, shall, on any particular oc-
' casion, devote it to the sale of exciseable liquors, and suffer large
' numbers to assemble and engage in drinking, he brings himself
' within the provisions of the statute, and will not be excluded by
' the fact that generally his premises are not used for the purpose of
' tippling or drinking. By such an act, the keeper of the house
' changes its character, converts it into a spirit shop for the time, and
' brings himself within the provisions of the statute. The same re-
' mark applies to a house used generally as a lodging-house, a tavern,
' or a hotel, the general character of which may be changed by adapt-
' ing it to a special purpose, differing from that to which it is gene-
' rally applied.
' A case of this nature has already occurred. A house said to be
' used for the accomfliodation of travellers, and consisting of seven
' apartments, was found one evening after eleven o'clock to contain
' seventy-five persons, who were engaged in drinkjlng and tippling.
' Six out of the seven rooms were fitted up with beds, and were
' occasionally occupied by visitors at the house, where commercial
' travellers were in the habit of residing when in town. Of the
' seventy-five individuals, three slept in the house that evening, the
' remaining seventy-two having been there for the purpose of drink-
' ing, in which they were proved to have been engaged. In that case
' the presiding Magistrate, acting on the principle already mentioned,
' found that the house having been used as a spirit shop for the time,
' came under the provisions of the statute, and decided accordingly.
' In the case above referred to, the circumstances were rather more
' favourable to the accused than those which have been proved in the
AND CIRCDIT COURTS OF JUSTICIARY. l75
present case. Here the averment that the house is properly de- No. 21.
signated as a hotel, iu conformity with its recently assumed name, "^"*™ *•
has not been proved. But even although such proof had been
adduced, it would not have affected the principle on which the deci- ^|j_ j7_ '
sion proceeded, and which it appears to the Magistrates applies also 1849.
to the present case. It cannot be pretended that on the evening of Suspension.
Saturday the 13th, the parties found in Mr Graham's house used it
as a hotel. They used it as a spirit shop for the purpose of tippling
or drinking the exciseable liquors which he supplied, and in doing
which it appears to the Magistrates he used his premises as a spirit
shop in the sense intended by the statute, and for purposes which the
statute was passed in order to prevent.
' Although much weight cannot be attached to the words ' or
' other similar place,' following the descriptive portion of the clause
in the statute, still they cannot surely be held to have no meaning
at all. If the word spirit shop be a local phrase, importing a place
entering from the street (which has been contended foi-), these
general words may fairly be construed as conferring a latitude of in-
terpretation which otherwise the Magistrates would not have pos-
sessed. According to the view contended for, the prohibition is in-
tended to be limited to tippling or drinking within places on a level
with the street, in cellars and iu vaults. But it cannot be supposed
to have been the intention of the Legislature to prevent the sale of
exciseable liquors in the lower stories, and admit the same act to be
carried on without interruption in the attics of the same tenement.
Such a doctrine leads to a manifest absurdity, and is therefore un-
tenable.'
Plead edfor the Suspender — This suspension was brought
on the ground that the Judge in the Inferior Court had
exceeded the jurisdiction, given him by the statute. It
was not denied that the premises were in truth an hotel.
It was only said that the use of the premises on a parti-
cular occasion, made it a spirit shop. The first question
was, whether the Court had jurisdiction to review under
the statute. The 107th section, which precluded review,
except in certain cases, left it open to the Court to en-
quire whether the particular case brought before them
fell within the exceptions or not. Thus, for instance, it
might be enquired, whether the premises, in respect of
which the complaint was presented, were within the limits
of the police bounds. Again, it might be enquired
under the 86th section, whether the magistrates had
176 CASES BEFORE THE HIGH COURT
No. 21. convicted in respect of any oifence which was therein
Graham v. i t \ „ ,,..■,.. mt •
Moxey. Specially excluded from his jurisdiction. This was pre-
HighCourt. cisely analagous to the present case. It was not sought
1849. ' to have a review on the merits, as to whether tippling
Suspension, took place after eleven o'clock at night or not, but only
whether the premises were in fact a ' spirit shop, vault,
' or cellar, or other similar place.' The 135th section
dealt with all houses licensed in the same terms, except
in so far that in licensed inns and hotels, and railway re-
freshment rooms, no limitation was imposed in respect of
Sabbath days. The 136th section commenced, ' If any
' person licensed as aforesaid' (and under the licensing
act, hotels, taverns, and spirit shops, had precisely the
same license,) and could not be construed, so as to be in
opposition to the preceding section, to which it referred.
Yet this must be, if hotels which were excluded from
the 135th section, were to be held as included in the
136th, inasmuch as that would lead to inconsistent pro-
visions in respect of the Sabbath.
This went farther than the mere question of construc-
tion of a particular section, as it shewed that drinking
alone could not make any premises a spirit shop ;
otherwise, the supplying a bottle of wine, without food,
on Sabbath morning, Avould make the best hotel in
Edinburgh liable to the penalties of the act, notwith-
standing the express exception in the 135th section.
The first question for the Judge to have determined
was, whether the premises were of such a character that
he had jurisdiction to enquire to what use they were ap-
propriated, and unless he had such jurisdiction, the sen-
tence was a nullity, and ought to be set aside.
Pleaded for the Respondent — This suspension was in-
competent. Section 107 of the act excluded all review,
except for certain specified causes, none of which were
alleged here. The alleged want of jurisdiction was a fal-
lacy. It was of the essence of the offence whether the
suspender contravened the act, by the use to which he
appropriated his house. All that was said on the other
AND CIRCUIT COURTS OF JUSTICIARY. 177
side, merely amounted to a denial of the offence. It was No. 21.
admitted, that if the complaint had shewn a want of juris- Moxey.
diction ea; facie, then there would have been a power to HighComt
review. But that was not shewn here. The charge was \ud. '
before the proper judge, and he affirmed it. Had he been suspenaion.
of opinion that the premises were not a spirit shop, ought
he to have dismissed the case as incompetent, or to have
said not guilty ? clearly the latter. Yet, if he had juris-
diction to say not guilty, he had also power to say guilty
if he found the offence proved. This shewed that the
locus was part of the offence, and not a question of juris-
diction, as argued on the other side. The use to which
the premises were appropriated determined their cha-
racter, and that was for the Judge to determine.
The LoED Justice-Clerk. — Do you say that an hotel-
keeper would be liable under this section, if he supplied
a pint of wine to a casual visitor in his coffee-room after
eleven at night ?
That would be for the Judge to determine, and his
judgment was made final by the statute.
The Lord Justice- Clerk. — The question is one of
great importance, and the duty which the Court has to
discharge is, in my opinion, to ascertain whether the
Police Magistrate has exceeded the jurisdiction given
him by the statute. This, in my view, is not a review
on the merits — it is not an enquiry into the propriety of
the sentence, or the sufficiency of the evidence on which
it proceeded, but whether the magistrate had power to
enter on the enquiry. The distinction is clearly marked
in the 84th section, in regard to the value of articles
stolen. By that section, if the person accused offers at
the time to prove that the value of the articles which
form the subject of the charge exceed £10, he is entitled
to enter upon the proof, and so oust the magistrate's
jurisdiction. But suppose the magistrate to determine
erroneously that the value did not exceed £10, could he
thereby give himself jurisdiction, and exclude review on
178 CASES BEFORE THE HIGH COURT
No. 21. this matter. Yet all the difficulties which have been
Graham v. « . , .
Moxey. Suggested, as to no record and finality of judgment in
High Court, the present case would exist in the case supposed.
1849." I do not think those difficulties insurmountable either
Suspension. OH principle or authority. The inherent jurisdiction of
this Court, to confine inferior courts within their func-
tions— a jurisdiction which is not disputed, must be ca-
pable of explication. Accordingly, in several decided
cases where similar difficulties have existed, the Court
have sustained the competency of a suspension, and di-
rected enquiry into the facts. Thus, in the case of
Robertson, High Court, Dec, 24. 1842, (Broun, vol. i.
p. 468), we held it competent to make enquiry, and
made a special remit for the purpose of ascertaining the
facts. In the case oi Anderson, High Court, Feb. 15. 1836,
(Swinton, vol. i. p. 35), the Court held the whole pro-
ceedings incompetent under the £10 clause in the former
Police Act. Again, in the case of Boioie, High Court,
Jan. 25. 1845, (Broun, vol. ii. p. 377), we directed an
enquiry as to whether the locus was within the limits of
the burgh. And in the case of Lockie, the other day
(ante, p. 161), I was prepared, had it been necessary, to
have remitted to the magistrates to pronounce a special
interlocutor finding the facts. There is then no doubt
that the Court can ascertain all matter of fact which
goes to the jurisdiction of the inferior tribunal.
But the 86th section of the present act makes the
matter plain, in my apprehension. It is thereby enacted,
that in certain cases the police magistrate shall have no
jurisdiction. Is it conceivable that, if the magistrate
disregarded this enactment, and proceeded to convict
in one of the excepted cases, the party could not sus-
pend on a relevant allegation ? or would it be any an-
swer to say that the complaint and conviction are all
that we could look at, in order to determine the case ?
Clearly not. This makes it clear to me, that ascertain-
ment of the fact is our duty, if the fact is disputed, and
AND CIRCUIT COURTS OF JUSTICIARY. ] 79
that suspension is competent if, upon admitted facts, we No. 21.
. Graham i
see that the magistrate has committed an error in law, Moxey.
and exceeded his functions. High Court.
Feb. 17
Premising this, how stands this case ? The 135th sec- 1849. '
tion is general, and comprehends all houses. It uses the Suspension.
Avords ' other premises.' There was plainly no reason
why the jurisdiction in the case of riotous and disorderly
persons should be limited. Inns and hotels are, however,
specially excepted, in so far as the clause is directed
against tippling on Sundays and Fast-days. I think the
broad import of the word exciseable liquors, must be no-
ticed in both the 135th and 136th. This plainly com-
prehends more than spirits. Then, when the place is de-
scribed in the 136th, to which the prohibition is intended
to apply, it is said to be ' in the case of a spirit shop,' &c.
a word not before used. This means, therefore, in the
case of premises of a special character, and the words
must receive a broad, popular, and intelligible interpre-
tation. Again, observe the effect of the construction
contended for, that the use to which the premises are
applied, is to« determine whether they are to be consider-
ed as a spirit shop. The words as to the period of divine
service are the same in both the 135th and 136th, and
hotels are specially exempted in the former. But, if use
is to determine, then the exemption is virtually repealed
under the 136th.
We are told that the decision of the judge is final as
to the use on that night. If that is so, then every place
may, at the discretion of a police magistrate, be put in
this category. I cannot take this, and do not think this
was ever intended. The 137th and 138th sections are
general where a general evil is sought to be prevented,
thus broadly drawing a distinction which has been over-
looked in the present case. Nor can I think the 162d
section is intended to apply to coffee-rooms at an inn,
yet this would follow if the argument of use was sound.
There is another ground on which I think this suspen-
sion competent, viz., that there is here a plain deviation
180 CASES BEFORE THE HIGH CODRT
No. -21. from the accustomed form in the complaint. It charges
Graham r>.
Moxey. that the accused did, within his premises, ' the same as
High Court. ' t/ieu used and occupied by him, being a spirit shop,' &c.
1849. " Can any one doubt that this is a deviation in form, and
Suspension, for a vvilful purpose, to give jurisdiction, and exclude
review. I am of opinion that the device is ineffectual,
and that we can competently ascertain the facts other-
wise, although I am also of opinion that the complaint
is invalid.
Lord Mackenzie. — I think we have no jurisdiction to
entertain this suspension. It is not alleged that there
was any corruption on the part of the judge. It is only
said that he assumed an excessive jurisdiction, and this is
the point for us to consider. I agree that the judge can-
not give himself jurisdiction by framing the complaint
and sentence so as to be unexceptionable ex facie. How-
ever troublesome it may be, I think there are cases in
which we are empowered, and consequently obliged, to
enquire into the facts, to see if this has been done. But
does this arise here ? I think not. I doubt whether the
136th clause has any limitation as to jurisdiction. It
seems to define crime, and not to restrict jurisdiction as to
place or time. Now, could not the judge have competently
assoilzied when the case was heard ? Could he not have
assoilzied if the time was wrong ? I think he could, and
consequently, I think the expressions as to time and place
are definitions of the offence, and not limitations of the
jurisdiction. If this is so, then We have no power of re-
view, as by the act the decisions of the judge are made
final. In respect of the form of the complaint, I do not
think there is such a deviation as entitles us to interfere.
The use to which a party appropriates his premises seems
to me very important, if not conclusive, in determining
whether the offence was committed. Consequently, I
think that any person whatever, who mainly uses his
premises for the purpose of supplying spirits, will be
guilty of an offence under the act, if he continue to sell
them after 11 at night.
AND CIRCUIT COURTS OF JUSTICIARY. 181
Lord Moncreiff. — I entirely concur with the Lord No. 20,
Justice-Clerk. If we refuse to enquire into the facts, I Moxey,
think we shall set a very dangerous precedent. We are High Court.
not called on at present to do more than sustain the com- isis.
petency of the suspension. We must judge of the case suspension.
afterwards. The question of competency depends on the
statute and the complaint. This is founded on the 136th
section, and the question is. Does this section apply to
inns and hotels, to prohibit drinking after 11 at night?
It seems to me impossible to say it does ; inasmuch as
that construction would operate as a repeal of the ex-
emption as to the Sabbath, which is made in the 135th.
It seems impossible, therefore, to read this as a general
clause, notwithstanding the vague terms used at the
commencement. I think that the sound interpretatiofl
is, that the penalties are limited to offences by keepers
of spirit shops, and that that term must be understood
in its broad and popular meaning. It is argued that this
is not a question of jurisdiction. To my mind it is a
question of jurisdiction, and nothing else. The Legisla-
ture has said, that a man who commits a certain act in a
specified place, is guilty of an offence. Is not the limi-
tation of the place a limitation of the jurisdiction I If,
then, the police magistrate exceeded his jurisdiction, by
proceeding to convict, in respect of excepted premises, I
think not only that he thereby exceeded his jurisdiction,,
but that it is our duty to tell him so. Jurisdiction is de-
pendent upon a crime having been committed. But the
offence here charged is, in my view, no crime cognizable
by the police magistrates, except in certain places, in
like manner as in the 86th, certain offences are excepted
from his adjudication. Besides, I take it to be clear that
the libel should in all cases explicitly set forth a plain
violation of the statute. But is that done here ? Quite
the reverse. There is no description of the premises as
they are. It is only said they were, on a particular occa-
sion, used as a spirit shop. This is not enough, in my
opinion. It seems to me an intentional device, resorted
182 CASKS BEFORE THE HIGH COURT
No. 21. to in order to give a iurisdiction the statute had not eon-
Graham «. O J
Moxey. ferrcd, and to render the decision final. I think it will
HighCourt.be eminently dangerous to allow any encouragement to
1849. such an attempt, and I am for sustaining this suspension,
Suspension, to the extent of directing an enquiry into the facts of the
case. The case of a person occupying an hotel, having
systematically perverted it to the purpose of tippling,
does not arise here, and I give no opinion thereon.
Lord Medwyn. — I concur generally with Lord Mac-
kenzie. Review is admitted in certain cases only under
the 107th section. It is alleged that the suspender com-
mitted no offence, and that the magistrate exceeded his
jurisdiction in convicting him. There is no doubt that
we may enquire into the facts as respects the jurisdic-
tion. But here, to my mind, it is a question of crime.
Use is the important matter in a case like the present,
otherwise the act would be Constantly evaded. I do not
think the peculiarity of the form of complaint such a de-
viation as was contemplated by the statute in the 107th.
The not citing of the party, refusal to hear witnesses, &c.,
seem to me to be the points of form mentioned. The
description of the premises was no doubt introduced ad-
visedly, to meet the case, and I am of opinion that the
judge, having affirmed the complaint, has thereby con-
clusively established the fact, and excluded all further
enquiry.
Lord Cockburn. — I am of opinion that this appeal is
incompetent. And, under the excluding clause of this
statute, I am of this opinion, even on the assumption that
the magistrate was wrong, both on the facts and on the
law.
The act makes every judgment of the Police Court
' Jinal and conclusive,' unless there was intentional ini-
quity/ on the part of the magistrate, or a wiifid violation
of form ; or incompetency in the original complaint. There
is no intentional iniquity alleged here ; nor any original
incompetency, except what depends on an unwarranted'
adoption of the appellant's account of the facts. He
AND CIRCUIT COURTS OF JUSTICIARY. 183'
says that, de facto, his premises were not a spirit shop ; No- 21.
and, on this assumption of his innocence, he argues that Moxey. '
the magistrate had no jurisdiction over him. If this High Court.
reasoning were sound, it is difficult to see how finality 1849. '
could ever be secured. It is perfectly plain (to my mind Suspension,
at least), that whenever the disputed fact is of the essence
of the crime, it would be a mere mockery of such an ex-
cluding clause, to pretend to defeat or evade it by first
beginning by reviewing the sentence on its merits, but
without the evidence ; and then, after thus fancying that
the inferior judge was wrong on the facts, to infer legally
that he had never had any jurisdiction in the matter.
A statute directs a magistrate to deal in a particular way
with a man found dmnk on the street, and excludes all
review. I cannot conceive how this exclusion can be
set aside, by the convicted person asserting, and oifering
to prove, that he was not drunk, and that therefore the
magistrate had no jurisdiction. Whether the Judge of
Police was right or wrong as to the appellant's premises
having been a spirit shop, I cannot say ; because this was
a matter of proof, and the statute prohibits the evidence
from being preserved. But his being wrong as to the
facts is certainly no ground of appeal.
It has been objected, that what the statute condemns
is, night tippling, in what actualli/ are vaults, cellars,
spirit shops, or other similar places, but that this com-
plaint only set forth the appellant's premises to be so,
as then used by him. I humbly think this frivolous ; the
complaint does assert that the premises came within the
statutory description. No doubt it adds that this was,
as then used ; but this addition, though it explains, does
not vitiate the charge. I should be very sorry to see the
punctilious nicety of regular indictments introduced into
police complaints. But, at any rate, — let the complaint
be defective, — still, the magistrate, in sustaining it, only
erred in law, and mere legal error will not warrant an ap-
peal to this court ; especially on a point of form. It is
said that this deviation from form was wilful ; but this is
184 CASES BEFORE THE HIGH COURT
No. 21. a supposition for which there is not a vestige of evidence,
Mox^.*' nor, so far as I can discover, even of moral probability.
High Court. Being of opinion that the appeal is incompetent, we
\si9. ' have, properly, nothing to do with the merits. But as
Suspension, it has been maintaiped that these two run into each
other, I shall merely say that, in my opinion, it can
never be determined what is a spirit shop, merely or
materially by a consideration of its position or structure.
It depends mainly, if not entirely, upon the use of the
place. A building originally erected, and long used, and
still in its form, a mere church, if it be employed as a
gin palace, is a spirit shop. And a place which is used
solely as a storehouse, or a school-room, is not a spirit
shop, because its sign as such, and its counters, and
shelves, and desks, and tills, all remain unchanged. The
use necessary to make any place a spirit shop is always a
matter of degree, of which it is the magistrate's duty to
judge, according to the circumstances of each particular
case. Now this place was complained of, and, upon evi-
dence, was condemned as a spirit shop or other similar
place, as used. Whether the evidence warranted this I,.
who have not the evidence, cannot say, and do not con-
jecture. It was referred by Parliament to the magis-
trate. It seems to be supposed that this is a dangerous
power to confer on a magistrate. Parliament did not'
think so ; and I have no idea that there would be less
danger, or even practicability, in making such facts com-
petent to be reviewed in the Supreme Courts.
Lord Wood. — There is under the statute no general,
but only a special power of review under the 107th section,
including deviation of form, and want of jurisdiction.
Now, there is no form or schedule of complaint given in
this statute. The objection, therefore, resolves into this,
that the complaint does not state a statutory offence. I
do not think the limitation implied by the use of the phrase,
spirit shop, was intended to involve a question of jurisdic-
tion, but to secure a fair disclosure of the facts. I think
it is the use which makes the offence. This involves the
AND CIRCUIT COURTS OF JUSTICIARY. 185
jurisdiction. The Judge must do more than enquire into e^hams.
the outward mark or name of the premises ; he must ascer- ^"^^^y-
tain the nature of the use which is made of them, and then '^^j^^™''''
his decision is final. People may call their house what i849.
they choose. But if the Judge is to enquire into use, his Suspension.
judgment is final. The difficulty of the question will not
give us the power of review ; and although the decision is
erroneous we cannot alter it.
Lord Justice-General. — I coincide with the Lord
Justice-Clerk and Lord Moncreiff on botji points. I
think there was no jurisdiction. I am also struck with the
mode of drawing the complaint. If meant to raise the
question, it ought to have to set it out in clear terms.
But I think it clear from the whole that the charge was
made so as to avoid the question, and this shews that
they meant to hold that mere use was enough It ap-
pears to me that whilst there is a precise definition of an
offence in the statute, that is distinct from the locus
delicti; first the offence, then the place, and that limited
so as to raise the question of jurisdiction. If not com-
mitted within the locus this raises the question. Con-
ceding the question as to excess of territory, to my mind,
decides this. There are many cases in which an allega-
tion of no jurisdiction has been made, and an enquiry has
been directed, and I cannot disregard those authorities.
I think the words spirit shop ought to be determined
in the plain common sense meaning of the phrase. Ex-
ciseable liquors are sold in hotels. The magistrate con-
victs, and we are told that we cannot review because he
has done so, and misapprehended the statute. To this I
entirely demur. There is no question of a mask here.
When that arises it will be time enough to determine it ;
but we are not to commit an injustice in a case where
the facts are ascertained, from a fear that other persons
may pervert our judgment, by using the sign of an hotel,
whilst in fact they are mere spirit dealers.
The Court refused the bill of suspension, with expenses.
John Keegan, S.S.C. — John Richabdbon, W.S.— Agents.
N
186 CASES BEFORE THE HIGH COURT
Present,
The Lokd Justice-Clerk,
Feb. 19. Lords Moncreiff and Medwtn,
1849.
Her Majesty's Advocate — Craufurd A, D. — J. M. Bell A. D.
AGAINST
John Gordon Robertson — Inglis — J. A. Wood.
Evidence. — Held, that where a Procurator- fiscal, who had been em-
ployed as an agent in the Sheriff Court in a civil suit, out of which
the prosecution arose, had been present when the pannel emitted
two declarations, and had also acted on behalf of the Crown otherwise,
he could not be examined as a witness on behalf of the Crown.
Production. — Held, that the Jury are not entitled in a criminal ease
to inspect the documents libelled on, and compare them with other
productions, it being the part of the Crown to establish the case by
evidence given in the box.
No 22
J. G. Ko- John Gordon Robertson, surgeon at Dingwall, was
'^^''^°°' charged with Theft ; as also Forgery, with Using and
^jPXaT' Uttering as genuine a Forged Writing :
1849.
In so par as, the late Arthur Eobertson, sometime of the Ceylon
Civil Service, and thereafter residing in Dingwall, brother of you the
said John Gordon Robertson, having been possessed, at the time of his
death, of certain jewels or other precious or ornamental stones or gems,
amounting in number to 1680, or thereby, or to some other number to
the prosecutor unknown, some of which were set in gold, which were
kept by him deposited in a wooden or other box within his dwelling-
house at Dingwall ; and the said Arthur Robertson having died at his
said dwelling-house, on or about the 22d day of February 1848, and
having left a trust-disposition and deed of settlement, dated 2d No-
vember 1846, and codicil thereto annexed, dated 17th February 1848,
including his whole estate, heritable and moveable, whereby John
Macrobin, now or lately professor of medicine in Marischal College,
Aberdeen, the Reverend John Robertson Mackenzie, now or lately re-
siding in West Wing Crescent, Birmingham, nephew of the said
Arthur Robertson, and you the said John Gordon Robertson were ap-
pointed trustees and executors of the said Arthur Robertson, and
whereby the free moveable means and estate of the said Arthur Ro-
bertson were bequeathed in two equal shares to the said Reverend
John Robertson Mackenzie and you the said John Gordon Robertson ;
Theft, &e.
AND CIRCUIT COUETS OF JUSTICIARY. 187
and you the said John Gordon Robertson liaving been resident, or at No. 22.
J. G. Ro
bertson.
least repeatedly present, in the said dwelling-house of the said Arthur
Robertson, during the said 22d day of February 1848, and several
days immediately prior and subsequent thereto, and having been re- ^^^ J"^ '
peatedly resident for various periods, or at least repeatedly present, in 1 849.
said dwelling-house during the months of January, February, and Theft, &c.
March 1848, and you not having taken the charge of the said box and
jewels or other precious and ornamental stones or gems, as trustee and
executor foresaid, you did, on one or other of the days of the said
month of February, or of the month of January immediately preceding^
or of the month of March immediately following, the particular day
being to the prosecutor unknown, in or near the said dwelling-house,
wickedly and feloniously, steal and theftuously away take, the said
Box and the said Jewels or other Precious or Ornamental Stones or
gems, or part thereof, the property, or in the lawful possession, of the
said Arthur Robertson, or of his trustees and executors foresaid:
LiKEAs (2.), on one or other of the days of the months of January^
February, and March foresaid, or of the first twenty-foar days of the
month of April 1848, the particular day being to the prosecutor un-
known, and within the dwelling-house aforesaid, or within the house
which was occupied by you the said John Gordon Robertson, jn the
burgh of Elgin, at the time of the decease of the said Arthur Robert-
son, or in some other place in th& counties of Elgin or Ross, or else-
where, to the prosecutor unknown, you the said John Gordon Ro-
bertson having resolved to assert a pretended right to the said box and
jewels, or other precious or ornamental stones or gems, on the false al-
legation that the same had been made over to you, as a gift, by the
said Arthur Robertson during his lifetime, did, wickedly and feloni-
ously, forge and fabricate, or cause or procure to be forged and fabri-
cated, a missive or other writing, purporting to be addressed by the
said Arthur Robertson to you the said John Gordon Robertson, and
to be of the following or similar tenor : — ' Dingwall 25* Jany 1 84S
' My Dear John, I am sory to say that I have been much worse than.
' you have seen me since my return from Inv»', and I wish you to
' come here immediately. I fear the worst, and have forwarded the
' Box with Jewels, which I present as a compliment to you. I there-
' fore entreat that you come to my immediate aid and pray try and
' prevail on M" Robertson to come along with you for I need all th®
' comfort you can afford me at this time. With kindest regards I re-
' main my Dear John your aff ' Brother,' and time and place last above
libelled, you the said John Gordon Robertson did, wickedly and felo-
niously, forge and adhibit, or cause or procure to be forged and adhi-
bited, to the said missive or other writing, the following words and
subscription, ' Arthur Robertson,' intending the said subscription to
pass for, and to be received as, the genuine subscription of the said
Arthur Robertson: Farther, on th& 17th day of the said mouth of
188 CASES BEFORE THE HIGH COURT
No. 22. April, or on one or other of the first twenty- four days of the said mouth
bertson"' "^ April, the particular day, if not the said 17th day of April, being to
the prosecutor unknown, you the said John Gordon Robertson did,
Feb. 19. " wickedly and feloniously, use and utter, as genuine, the said false,
1849. forged, and fabricated missive, or other writing, having thereon the
Theft, &e. said forged subscription, you well knowing the same to be forged, by
putting the same, or causing or procuring some person to the prosecu-
tor unknown to put the same into the Post-Offioe at Dingwall, or into
some other post-office in Scotland to the prosecutor unknown, under a
cover or envelope, addressed to Donald Stewart, now or lately writer
in Tain, or by delivering the same, or causing or procuring some per-
son to the prosecutor unknown, to deliver the same to the said Donald
Stewart at Tain, or at some other place to the prosecutor unknown,
with intent that the said Donald Stewart, receiving the said missive,
or other writing, as genuine, should hold or use the same for your be-
hoof in defending you against any claim made, or to be made, against
you by the said John Macrobin and the said Reverend John Robertson
Mackenzie, or either of them, your co-executors and co-trustees fore-
said, for obtaining delivery of the said box and jewels or other pre-
cious or ornamental stones or gems, which had been traced to your
possession, or with some other fraudulent intent to the prosecutor un-
known ; as also, farther, a petition having been presented against you
the said John Gordon Robertson, by the said John Macrobin, and the
said Reverend John Robertson Mackenzie, and his mandatory, to the
sheriff of Ross and Cromarty shires, or his substitute, praying, inter
alia, to have you decerned and ordained to deliver up the foresaid
box, and the foresaid jewels or other precious or ornamental stones or
gems, and you the said John Gordon Robertson having opposed said
petition, and certain procedure having been had, in the process follow-
ing thereon, you the said John Gordon Robertson did, in support of
your said opposition, on the 1st day of June 1848, or on one or other
of the days of that month, or of May immediately preceding, or of
July immediately following, at or near the General Post-Office in
"Waterloo Place, in or near Edinburgh, or at or near one or other of
the receiving-houses in or near Edinburgh, where letters are received
or posted for the said General Post-OflBce, the particular receiving-
house being to the prosecutor unknown, wickedly and feloniously, use
and utter, as genuine, the said false, forged, and fabricated missive, or
other writing, having thereon the said forged subscription, you well
knowing the same to be forged, by putting the same, or causing or
procuring the said Donald Stewart, your agent in the process foresaid,
or some other person to the prosecutor unknown, to put the same into
the said General Post-Oifice, or into one or other of the said receiving-
houses, enclosed within an envelope addressed to William Ross, then
and now or lately sheriff-clerk-depute of Ross-shire, at Dingwall, in
which envelope you also enclosed, or caused or procured the said
AND CIRCUIT COURTS OF JUSTICIARY. 189
Donald Stewart, or other person to tbe prosecutor unknown, to enclose, No. 22.
a letter from the said Donald Stewart, addressed to the said William \^l^'
Ross, and on behalf of you the said John Gordon Eohertson, request-
ing the said William Ross to put the said false, forged, and fabricated jfgj,_ °g^ '
missive, or other writing, into the foresaid process ; as also, requesting 1849.
the said William Ross to put into said process a relative minute, con- Theft, &c.
sisting of three pages, or thereby, which was signed, on behalf of you
the said John Gordon Robertson, by the said Donald Stewart, and
which was likewise enclosed in said envelope ; and the said William
Ross having, on or about the 2d day of the month of June foresaid,-
received the said envelope, and the said false, forged, and fabricated
missive, or other writing, having thereon the said forged subscription,
and the said relative minute, and the said letter, did, at Dingwall, and
on or about the 2d and 3d days of the said month of June, or one or
other of said days, affix his process mark to the said false, forged, and
fabricated missive or other writing, as also to the said relative minute,
or did otherwise put the said false, forged, and fabricated missive or
other writing, as also the said relative minute, into the said process,
and did use the same as forming part of the said process, and did then
or thereafter give out the same to the opposite parties in said process,
as papers lodged or documents produced by you the said John Gordon*
Robertson.
Before this prosecution was instituted, there had been
a civil suit before the Sheriff of Ross and Cromarty, re-
specting the box of jewels said to have been stolen by
the prisoner. In the course of that litigation, the letter
said to have been forged was lodged in process by him as
genuine. In the course of the trial, Mr John Mackenzie,
writer in Dingwall, was called on the part of the Crown,
who being examined in initialibus, deponed —
I am Procurator- fiscal in Dingwall. I took charge of the case
iagainst the prisoner, before the Sheriff, on behalf of the executors of
the late Arthur Robertson. I afterwards took up the matter as Pro-
curator-fiscal. I presented two applications, and took a considerable
part of the precognitions. I was present when the pannel emitted two
declarations. I had the charge of the case as agent up to the period
when it was reported to the Crown agent.
Inglis . thereupon objected that the witness was in-
competent, on the ground of agency and partial counsel.-
Ceaufurd said — he did not purpose to examine him
generally, but merely as to a fact and a conversation which
190 CASES BEFORE THE HIGH COURT
No. 22. occurred before he took up the case in his public capacity.
bertaon. There was no other person who could depone to these
HighCourt. matters ; cases of Hagan, Dec. 26. 1838, Bell's Notes,
^i849.'' p. 248 ; Stephens, April 20. 1839, Swinton, vol. ii. p. 348.
Theft, &c. This case was stronger than those, as it was not sought
to ask any question as to facts which had come to the
witness's knowledge whilst acting in his public capacity.
Inglis replied — it was immaterial when the agency and
partial counsel began, or when it ended. The only question
was, had the witness been so mixed up in the preparation
of the case as that the objection applied. In this case it
plainly did, and consequently, it went to disqualify the
witness from giving any testimony whatsoever in the
- case.
Lord Moncreiff.— If we had time to examine the
cases, perhaps ground might be found for the admission
of this witness ; but, at present, I think it safer to sus-
tain the objection. It is not any matter, in my mind,
that, at the time of the interview, he was merely an op-
posing agent. He afterwards acted as Fiscal, not merely
in presenting two applications to the'Sheriff, which might
not have been any disqualification, but he was present at
the emission of two declarations, and went on to precog-
nosce the witnesses. At present, I am not prepared to
hold that the witness is admissable after that.
Lord Wood concurred.
The Lord Jusiice-Clerk. — I concur also. There is
no blame attributable to Mr Mackenzie, but it would
have been much better if, after presenting his applica-
tion, he had mentioned the fact to the Sheriff, that he
would be required as a witness, so that another person
might have conducted the case. The taking precogni-
tions is the important thing, and that on which we pro-
ceed. It must not, however, be taken that the Court
has decided any general point. The judgment must be
taken with reference to this particular case only.
The objection was sustained.
Craufurd, in addressing the jury, wfer alia, informed
AND CIRCUIT COURTS OF JUSTICIARY. 191
them that they would have an opportunity of inspecting No. ^
the document which was libelled as being forged, and bertson.
comparing it with the other productions, which were ad- HighCourt.
mitted to be the genuine writing of the deceased. 1349.
The LoBD Justice-Clerk, in summing up, informed Theft, &e.
the jury that the Court did not think it right to allow
them to see the documents, so as to make a comparison
in the box. The Crown was bound to have proved the
case against the prisoner, by evidence on which his coun-
sel could animadvert. Whatever might be the rule in
civil cases, the inspection of documents by fifteen gentle-
men, none of whom could be examined as to the ground
of his opinion, was not a satisfactory mode of establishing
guilt in a criminal court, and the jury would accordingly
assume, that unless the evidence which had been given
was conclusive as to the prisoner's guilt, that the prose-
cution had failed.
The Jury, by a majority of one, found the charge not
proven.
In respect of which verdict of assize, the said John
Gordon Robertson was assoilzied simpUciter and dismissed
from the bar.
Present,
The Lord Justice-Clerk,
Lords Mackenzie and Medwtn.
Her Majesty's Advocate — Crau/urd A.D. — J. M. Bell A.J>.
against
James Gibson and Malcolm M'Millan— Zo^aM.
Indictment — ^Eeletancy — Objection, that where two rooms had
been mentioned in the indictment, and the charge was that the pan-
nels had broken open a lockfast place ' therein,' without saying in
which room, sustained, as too yague.
192 CASES BEFORE THE HIGH COURT
No- 23. James Gibson and Malcolm M'Millan were indicted
James
Gibson and for Theft, by means of Housebreaking, and by Opening
M'Millan. Lockfast Pkces :
High Court.
March 12. In SO PAR AS, on the night of the 27th, or morning of the 28th, day
^^^' of November 1848, or on one or other of the days of that month, or
Theft, &c. of Ootober immediately preceding, or of December immediately fol-
lowing, you the said James Gibson and Malcolm M'Millan, did, both
and each, or one or other of you, wickedly and feloniously, break into
and enter the vestry of, or other apartment connected with. Saint
Mary's Episcopal Chapel, situated in or near Dalkeith Park, in the
parish of Dalkeith, and county of Edinburgh, by breaking the glass
and framework, or part thereof, of a window of said vestry or other
apartment, and entering thereby to the said vestry or other apartment,
and to the said chapel, or by some other means and in some cither way
to the prosecutor unknown ; and having thus, or otherwise to the pro-
secutor unknown, obtained entrance into the said vestry or other
apartment and chapel, you the said James Gibson and Malcolm M'Mil- ,
Ian did, both and each, or one or other of you, then and there wicked-
ly and feloniously, steal and theftuously away take from a lockfast
escritoire or writing desk, which you then and there, wickedly and
feloniously, opened by forcing the lid or top thereof with a chisel or
other instrument to the prosecutor unknown, seven, or thereby, bank
or banker's notes for one pound sterling each, one pound nine shillings
and sixpence sterling, or thereby, in silver and copper money, a brace-
let, a brooch : as also, a pocket- communion service, consisting of a
small silver patten, a small silver cup, and a glass bottle with a silver
top ; as also, a small paper box containing several postage stamps or
labels ; as also, from a lockfast box in said vestry or other apartment,
which box you then and there, wickedly and feloniously, forced open
by means of a chisel, or otherwise to the prosecutor unknown, a com-
munion cup, silver gilt or other metal, a patten or salver, silver gilt
or other metal, a salver or aim's dish, silver gilt or other metal ; as
also, from the said vestry, two silver or plated candlesticks ; as also,
from the said chapel, two ink bottles, two altar cloths, four, or there-
by, napkins, a pen-knife, a pair of scissors, a bread-knife, several sur-
plices, several pieces of chamois leather, a button hook, a small piece
of brass from the eagle lectern of said chapel, and a small piece of
brass from an altar candlestick, the property, or in the lawful posses-
sion, of the vestrymen or congregation of the said chapel or of his
Grace the Duke of Buccleugh, or of the Reverend William Bird
Bushby, now or lately clerk-chaplain of said chapel, and now or lately
Residing at Parsonage of Saint Mary's, Lugton, and parish of Dalkeith,
^nd county of Edinburgh.
AND CIRCUIT COURTS OF JUSTICIARY. 193
Logan, for the pannels, objected to the relevancy of No- 2s.
the indictment, in so far as that, having charged an en- Gibson and
trance by a window of the vestry or other apartment, M'Mm^.
and the chapel, it proceeded to charge that they did, High Court.
then. and there, forcibly open the escritoire or writing- ^^i^ig!^'
desk, and take therefrom the articles mentioned. This^rj^eft &c.
was not sufficiently stated, as it left it uncertain whether
the desk was in the chapel or in the vestry, and yet was
not stated in the alternative.
Craufurd replied, that it was uncertain in what por-
tion of the building the desk was placed at the time of
the theft.
The Lord Justice-Cleek.— If the words ' then and
' there,' apply to both the chapel and the vestry, it may
do, but I much doubt if this indictment will bear that
construction. It would clearly have been better to have
stated it as it is .charged farther on in the indictment,
alternatively.
The first part of the indictment, relating to the ar-
ticles stolen from the desk, was thereupon struck out.
Evidence having been led on both sides, the Jury
found the pannels guilty under the libel as restricted.
In respect of which verdict of assize, the said James
Gibson and Malcolm M'Millan were sentenced to be
transported for the respective periods of ten and seven
years.
194 CASES BEFORE THE HIGH COXJKT
Present,
March 13. The Lord Justice-Clerk,
1849.
Lords Mackenzie and Wood.
Her Majesty's Adtocate. — Craufurd A.D. — J. M. Bell A.D.
William M'Gall. — Moncreiff.
Indictment — Relevancy. — Circumstances in whicli a portion of a
minor was struck out, as being uncertain to which of the two majors
it was applicable.
Jurisdiction. — Circumstances in which an objection to the jurisdic-
tion of the Court was repelled.
Productions. — Circumstances in which the Court refused to allow
the Jury to see the documents produced, in accordance with the
rule stated in Robertson, ante p. 186.
No. 24. William M'Gall was indicted for Breach of Trust
M'Gaiu and Embezzlement :
High Court, jj, gQ j,^g ^g^ James Jeffreys Oswald of Edrington Castle, in the
1849. ' parish of Mordington, and shire of Berwick, and now or lately residing
Embezzle- *''^''®» being engaged in grindinggrain at Edrington Mills, in the parish of
ment and Mordington aforesaid, and in disposing of meal, flour, and similar articles,
breach of ^ bakers and others his customers who inhabited Dunse, Coldingham,
Eyemouth, and other places in the said shire, and carried on business
there,"and the said James Jeffreys Oswald having employed or intrusted
you the said William M'Gall as his clerk or agent, or otherwise acting
on his behalf, to make successive calls, at certain periodical intervals,
upon his said customers, for the purpose of your procuring orders for
goods from them, and of your uplifting and receiving payments of ac-
counts due by them for goods furnished, and of your granting discharges
to the customers therefor, and of your paying to the said James Jeffreys
Oswald the sums of money so uplifted and received by you the said
William M'Gall, or of your truly accounting to the said James Jeffreys
Oswald for the same ; and, pursuant thereto, you the said William
M'Gall having, on numerous occasions between the first day of the
month of May 1847 and the last day of the month of August 1848,
the date of each or most of said particular occasions being to the pro-
secutor unknown, at or near the several and respective places of busi-
ness or dwelling-houses of the several and respective customers afore-
said, uplifted and received, for behoof of the said James Jeffreys
Oswald, from the several and respective customers foresaid, sums of
money, extending in all to a great amount, in payment of accounts due
AND CIRCUIT COURTS OP JUSTICIARY. 195
by the said several and respective customers to the said James Jeffreys No. 24.
Oswald; and it being the duty of you the said William M'Gall, and ^^q^'
in aocordanoe with the trust committed to you as aforesaid by the said
James Jeffreys Oswald, to account truly to the James Jeffreys Oswald jiarch*13."
for all the sums of money uplifted and received by you as aforesaid, 1849.
and without delay to pay over the same or the amount thereof to him, Embezzle-
or to such party as he should direct, you retaining no part of said sums ™^"' *"•*„
1 J . it 1 ■ .1, c -J i Breach of
m your own lianas ; yet nevertheless, in the course oi your said tran- Trust.
sactions, between the first day of the said month of May 1847 and the
last day of the said month of August 1848, the particular dates being
to the prosecutor unknown, and at or near the several and respective
places of business or dwelling-houses of some of the several and re-
spective customers foresaid, or at or near Edrington Castle or Edring-
ton Mills aforesaid, or at or near some other place or places within or
near the said shire of Berwick to the prosecutor unknown, you the
said "William M'Gall did, wickedly and feloniously, and in breach of
the trust committed to you as aforesaid, embezzle and appropriate to
your own uses and purposes, various sums of money, consisting of bank
or banker's notes, and of gold, silver, and copper coin, or one or more
of the said species of coin, the proportions of each being to the prose-
cutor unknown, extending in all to a large amount, being part of the
money uplifted and received by you the said William M'Gall as afore-
said, and did fraudulently fail to pay or account for the said various
sums of money to the said James Jeffreys Oswald : In particdlak,
Catherine AUanshaw, now or lately baker and innkeeper at Eyemouth,
in the parish of Eyemouth, and shire aforesaid, and now or lately re-
siding there, being one of the foresaid customers of the said James
Jeffreys Oswald, and you the said William M'Gall, between the first
day of the said month of May 1847 and the last day of the said month
of August 1 848, at or near the inn or shop in Eyemouth of the said
Catherine AUanshaw, or at some other place near Eyemouth to the
prosecutor unknown, having uplifted and received from the said
Catherine AUanshaw, or from Agnes Allan, niece of, and now or
lately residing with, the said Catherine AUanshaw, or from some other
person to the prosecutor unknown, acting for behoof of the said
Catherine AUanshaw, on eleven different occasions, or thereby, sums
,of money due by the said Catherine AUanshaw to the said James
Jeffreys Oswald, amounting to £328 sterling, or thereby, conform to
eleven, or thereby, discharges or settled accounts, enumerated or set
forth in inventory No. I. hereto annexed ; or you having, place last
above libelled, uplifted and received as aforesaid, or some other number
of occasions, within the period last above libelled, to the prosecutor un-
known, sums of money due by the said Catherine AUanshaw to the
said James Jeffreys Oswald, amounting to £328 sterling, or thereby,
for behoof of the said James Jeffreys Oswald, you the said William
M'Gall did, wickedly and feloniously, and in breach of the trust com
196 CASES BEFORE THE HIGH COURT
Wiiliam "^'t^d to you as aforesaid by the said James Jeffreys Oswald, within
M'Gall. the period of time last above libelled, and shortly after all and each or
HighCourt. some of the several and respective occasions foresaid, on which you
March 13 . ...
1849. " uplifted and received money as aforesaid, due by the said Catherine
Embezzle- -^H^Dshaw to the said James Jeffreys Oswald, or at some other times
nient and within the said period to the prosecutor unknown, and at or near the
Trust '°° °^ ^^"P foresaid of the said Catherine AUanshaw or at or near
Edrington Castle or Edrington Mills aforesaid, or at some other place
or places in or near the shire of Berwick to the prosecutor unknown,
embezzle and appropriate, to your own uses and purposes, various sums
of money, amounting to £81 sterling, or thereby, being part of the
money uplifted and received by you as aforesaid, for behoof of the said
James Jeffreys Oswald, and did fraudulently fail to pay or account for
the said various sums of money, amounting to £81 sterling, or thereby,
to the said James Jeffreys Oswald : Likeas (2.), George Greenfield,
now or lately baker at Ooldingham, in the parish of Coldingham, and
shire aforesaid, and now or lately residing there, being one of the fore-
said customers of the said James Jeffreys Oswald, and you the said
William M'Gall, between the first day of the said month of May 184T
and the last day of the said month of August 1 848, at or near the
shop or dwelling-house in Coldingham of the said George Greenfield,
or at some other place in or near Coldingham to the prosecutor
unknown, having uplifted and received from the said George Green-
field, or from some other person to the prosecutor unknown, acting
for behoof of the said George Greenfield, on fourteen different
occasions, or thereby, suras of money due by the said George Green-
field to the said James Jeffreys Oswald, amounting to £317 sterling,
or thereby, conform to fourteen, or thereby, discharges or settled
accounts, enumerated or set forth in inventory No. II. hereto an-
nexed ; or you having place last above libelled, uplifted and received as
aforesaid, or some other number of occasions, within the period last
above libelled, to the prosecutor unknown, sums of money due by the
said George Greenfield to the said James Jeffreys Oswald, amounting
to £317 sterling, or thereby, for behoof of the said James Jeffreys
Oswald, you the said William M'Gall did, wickedly and feloniously,
and in breach of the trust committed to you as aforesaid by the said
James Jeffreys Oswald, within the period of time last above libelled,
and at or shortly after all and each or some of the several and respec-
tive occasious foresaid, on which you received money as aforesaid, due
-by the said George Greenfield to the said James Jeffreys Oswald, or
at some other times within the said period to the prosecutor unknown,
and at or near the dwelling-house or shop foresaid of the said George
Greenfield, or at or near Edrington Castle or Edrington Mills afore-
said, or at some other place or places in or near the shire of Berwick
to the prosecutor unknown, embezzle and appropriate, to your own
uses and purposes, various sums of money, amounting to £85 sterling,
AND CIRCUIT COURTS OP JUSTICIARY. 197
or thereby, being part of the money uplifted by as aforesaid for behoof No. 24.
of the said James Jeffreys Oswald, and did fraudulently fail to pay or ji'Gall.
account for the various sums of money, amounting to £85 sterling, or
thereby, to the said James Jeffreys Oswald : Ltkeas (3.), John Cock- March 12.'
burn, now or lately baker in Dunse, in the parish of Dunse, and shire iSi9.
aforesaid, and now or lately residing there, being one of the foresaid Embezzle-
customers of the said James Jeffreys Oswald, and you the said Wil- Breach"of
liam M'Gall, between the first day of the said month of May 1847 Trust.
and the last day of the said month of August 1848, at or near the
dwelling-house or shop in Dunse of the said John Cockburn, or at
some other place in or near Dunse to the prosecutor unknown, having
uplifted and received from the said John Cockburn or from some other
person to the prosecutor unknown, acting for behoof of the said John
Cockburn, on twenty-eight different occasions, or thereby, sums of
money due by the said John Cockburn to the said James Jeffreys Os-
wald, amounting to £561 sterling, or thereby, conform to twenty-eight,
or thereby, discharges or settled accounts, enumerated or set forth in
inventory No. III. hereto annexed ; or you having, place last above
libelled, uplifted and received as aforesaid, on some other number of
occasions, within the period last above libelled, to the prosecutor un -
known, sums of money, amounting to £561 sterling, or thereby, for
behoof of the said James Jeffreys Oswald, you the said William
M'Gall did, wickedly and feloniously, and in breach of the trust com-
mitted to you as aforesaid by the said James Jeffreys Oswald, within
the period of time last above libelled, and at or shortly after all and
each or some of the several and respective occasions foresaid, on which
you uplifted and received money as aforesaid, due by the said John
Cockburn to the said James Jeffreys Oswald, or at some other times
within the said period to the prosecutor unknown, and at or near the
dwelling-house or shop foresaid of the said John Cockburn, or at or
near Edrington Castle or Edrington Mills foresaid, or at some other
place or places in or near the shire of Berwick to the prosecutor un-
known, embezzle and appropriate, to your own uses and purposes,
various sums of money, amounting to £61 sterling, or thereby, being
part of the money uplifted and received by you as aforesaid for behoof
of the said James Jeffreys Oswald, and did fraudulently fail to pay or
ficcount for the said various sums of money, amounting to £81 sterling,
or thereby, to the said James Jeffreys Oswald : Likeas (4.), Robert
Wilson, now or lately baker in Dunse aforesaid, and now or lately re-
siding there, being one of the foresaid customers of the said James
Jeffreys Oswald, and you the said William M'Gall, between the first
day of the month of December 1847 and the last day of the said
month of August 1848, at or near the dwelling-house or shop in Dunse
of the said Robert Wilson, having uplifted and received from the said
Robert Wilson, or from some other person to the prosecutor unknown,
acting for behoof of the said Robert Wilson, on twelve different occa-
198 CASES BEFORE THE HIGH COURT
No. 24. eions, or thereby, sums of money due by the said Robert Wilson to
M'GaU^ the said James Jeffreys Oswald, amounting to £140 sterling, or there-
„. , _, by, conform to twelve, or thereby, discharges or settled accounts, enu-
March 13. merated or set forth in inventory No. IV. hereto annexed ; or you
^^^^- having, place last above libelled, uplifted and received as aforesaid, on
Embezzle- some other number of occasions, within the period last above libelled,
mentand i^ ^]^^ prosecutor unknown, sums of money, amounting to £140 ster-
Trust ling, or thereby, for behoof of the said James Jeffreys Oswald, you the
said William M'Gall did, wickedly and feloniously, and in breach of
the trust committed to you as aforesaid by the said James Jeffreys
Oswald, within the period of time last above libelled, and at or shortly
after all and each or some of the several and respective occasions fore-
said, on which you uplifted and received money as aforesaid, due by
the said Robert Wilson to the said James Jeffreys Oswald, or at some
other times within the period last above libelled to the prosecutor un-
known, and at or near the dwelling-house or shop foresaid of the said
Robert Wilson, or at or near Edrington Castle or Edrington Mills
aforesaid, or at some other place or places in or near the- shire of Ber-
wick to the prosecutor unknown, embezzle and appropriate, to your
own uses and purposes, various sums of money, amounting to £27
sterling, or thereby, being part of the money uplifted and received by
you as aforesaid for behoof of the said James Jeffreys Oswald, and did
fraudulently fail to pay or account for the said various sums of money,
amounting to £27 sterling, or thereby, to the said James JeSreja Os-
wald : LiKEAs (5.), Robert Keldie, now or lately baker in Dunse
aforesaid, and now or lately residing there, being one of the foresaid
customers of the said James Jeffreys Oswald, and you the said William
M'Gall, between the first day of April 1848 and last day of the said
month of August 1848, at or near the dwelling-house or shop of the
said Robert Keldie, or at or near the dwelling-house or inn of William
Jack, now or lately innkeeper at Dunse aforesaid, and now or lately
residing there, having uplifted and received from the said Robert
Keldie, or from the said William Jack, or from some other person to
the prosecutor unknown, acting for behoof of the said Robert Keldie,
on eight different occasions or thereby, sums of money due by the said
Robert Keldie to the said James Jeffreys Oswald, amounting to £80
sterling, or thereby, conform to seven, or thereby, discharges or settled
accounts, enumerated or set forth in inventory No. V. hereto annexed ;
or you having, place last above libelled, uplifted and received as afore-
said, on some other number of occasions within the period last above
libelled to the prosecutor unknown, sums of money due by the said
Robert Keldie to the said James Jeffreys Oswald, amounting to £80
sterling, or thereby, for behoof of the said James Jeffreys Oswald, you
the said William M'Gall did, wickedly and feloniously, and in breach
of the trust committed to you as aforesaid by the said James Jeffreys
Oswald, within the period of time last above libelled, and at or shortly
AND CIRCUIT COURTS OF JUSTICIARY. 199
after all and each or some of the several and respective occasions fore- No. 24.
said, on which you uplifted and received money as aforesaid, due by ^Igf'^
the said Robert Keldie to the said James Jeffreys Oswald, at or near —
the respective dwelling-houses or shop or inn foresaid of the said ji|ygh°i3.'
Robert Keldie, or of the said William Jack, or at or near Edrington 1 849.
Castle or Edrington Mills aforesaid, or at some other place or places Embezzle-
in or near the shire of Berwick to the prosecutor unknown, embezzle ment and
, . , , J . f Breach of
and appropriate, to your own uses and purposes, various sums ot rpj.j,gj._
money, amounting to £20 sterling, or thereby, being part of the money
uplifted and received by you as aforesaid for behoof of the said James
Jefeeys Oswald, and did fraudulently fail to pay or account for the
said various sums of money, amounting to £20 sterling, or thereby, to
the said James Jeffreys Oswald.
MoNCREiFF, for the pannel, objected to the relevancy
of the indictment, in so far as respected the third charge.
It was too ambiguous. The major charged, as well brpach
of trust, as also embezzlement, whilst the minor set forth
that at the place specified in the third charge, the pannel
* did embezzle and appropriate to his own uses and pur-
' poses various sums of money, amounting to £61 ster-
' ling, or thereby, being part of the money uplifted and
* received by him as aforesaid, for behoof of the said
' James Jeffreys Oswald, and did fraudulently fail to pay
' or account for the said various sums of money, amount-
' ing to the sum of £81 or thereby, to the said James
' Jeffreys Oswald.' This left it uncertain whether it was
intended to charge embezzlement or breach of trust,^ by
fraudulently failing to pay or account to the extent of
£61 sterling.
The Lord Justice-Cleek. — ^The objection must be
sustained, and that portion of the charge must be struck
out.
MoNCREiFP then objected, that the locus of the offence
was not sufiiciently described. No doubt, it was not
necessary to be very strict in describing a place where an
offence was committed, provided it was sufficient to shew
that it was within the jurisdiction of the Court. But
there was no precedent to sustain an indictment where
the locus was set forth in such an indefinite manner as
200 CASES BEFORE THE HIGH COURT
No. 24. that it was ' at or near Edrinffton Castle or Edringtonf
William , , „ „ , ,
M'Gaii. ' Mills, aforesaid, or at or near some other place or
High Court. ' places, ill or near the shire of Berwick, to the prose-
1849. " ' cutor unknown.' For aught that appeared in the libel
Embezzle- it Blight have been over the border, and consequently,
Breach°of beyond the jurisdiction of the Court. This was too am-
Trust. ijiguous, as the Court must take judicial notice that the
county of Berwick bordered on an adjoining country, to
the courts of which the pannel would be amenable if the
offence was committed beyond the bounds of Scotland.
Bell, A.D. — It was matter of form to describe the
locus in the manner set forth in this indictment, and the
Court could not presume against their own jurisdiction.
The LoED Justice-Cleek. — The Court have no doubt
on the question. In strictness, no particular place is in this
peculiar case necessary to be set forth in the indictment,
and the more general words ' at or near,' a're only stated for
technical purposes. In the present case, it seems very evi-
dent that sufficient is set forth to give the Court jurisdic-
tion over the alleged offence. It is said that he received the
money in Scotland, and failed to account to his employer
therein. It is impossible to say where the guilty inten-
tion of retaining the money which he had received on
behalf of his employer was first adopted, but it would be
presumed, in the absence of opposing evidence, that he
had all along had the intention on which he acted.
The prisoner having pleaded Not Guilty, and a long
proof having been led, consisting in part of receipts given
by the pannel to persons from whom he had received
money on behalf of Mr Oswald, one of the jurors, after
the Lord Justice-Clerk had explained their import in the
course of his charge, requested to see these documents.
Lord Justice-Clerk. — Gentlemen, — You had better
not have them. The Crown must prove their case by
evidence which can be tested by cross-examination, and
you are to judge on such evidence, so tested, and such
only. If you do not think that the case for the prosecu-
tion has been proved in this way, you will assume that it
AND CIRCUIT COURTS OP JUSTICIARY. 201
has failed. The mere inspection of documents by fifteen ^°[^^^
gentlemen in a jury-box, is not a satisfactory mode of M'Gaii.
establishing guilt against any party, and it is better that ?]sh court.
you should proceed to acquit than to convict on any con- i849.
jecture which you could so form, and which the prisoner Embezzie-
.„,.. T •! ment and
has had no opportunity of explaining. Jurymen might Breach of
by such comparison easily mislead themselves, and dif- "^"
ferent Jurymen might go on different conjectures as to
handwriting, or as to the accuracy or inaccuracy of entries
in the accounts; while, if these had been stated; and
known to the parties, they might be shewn to be all
erroneous and unsatisfactory. If the evidence given does
satisfy you respecting the documents, it is better to acquit.
The Jury, by a majority, found the pannel guilty of the
first and fourth charges as libelled, under deduction of
£20 from the first charge and of £10 from the fourth
charge.
In respect of which verdict of Assize, the Court ad-
adjudged the pannel to : be imprisoned in the prison of
Perth for the period of twelve calendar months.
Present,
The Lord Jcstice-Glerk, *^4g '
Lords Moncreipf, Mbdwyn, Cockburn, and Wood.
John Etch and Alfred Golf, Suspenders — Deas.
AGAINST
John Burnett, Respondent — Ai/toun.
Suspension — ^Attempt to Steal — Rogue and Vagabond. — Held,
refusing a Note of Suspension, that it was an offence cognisable
in a Police Court, to put a hand into a passenger's pocket with in-
tent to steal, and that a party would be properly convicted as a
rogue and vagabond in respect thereof.
6
202 CASfeS BEFORE THE HIGH COURT
No. 25. On the 5th day of March 1849, the suspenders were
Golf «. sentenced to be imprisoned in the prison of Glasgow, by
"™* ■ one of the bailies of the Police Court there, in virtue of
Mlrch'is. a complaint presented to him at the instance of the re-
'^^^' spondent, charging the suspender ' with having, on Satur-
Suspension. , ^^^ ^q^^^ in or near Queen Street, and in or near St
• Vincent's Place, Glasgow^ actors or actor, or art and
' part, feloniously attempted to pick the pockets of Seve-
' ral of the lieges, whose names and places of abode were
' tb the prosecutor unknown, and With being rogues and
'• Vagabonds, following no lawful employment.'
tt appeared that one of the suspenders had been seen
by a policeman with his hand in the pocket of a passenger
in the street, and that they were followed by him, to-
gether with an assistant whom he found, and apprehended
at the distance of a mile from the place where the al-
leged offence was committed. Having been taken before
the presiding bailie, the charge of being rogues and vaga-
bonds Was abandoned, hoi the case was proceeded with
on the charge of attempting to pick pockets, and a &&&-
viction ensued.
Deas, for the suspenders, — ^The only charge which
went to proof was that of an attempt to pick the pocket
of some persons unknown. This was not an offence. Ex-
cept in certain very great crimes, the law did not take
cognizance of abortive attempts. An attempt to steal
had never been found relevant in the Court of Justiciary,
rmilto magis it was not an offence in a Police Court,
where the parties were summarily tried, and the means
of disproving such a charge were obviously very difficult,
if not impossible, from the want of notice and other ad-
vantages given in the Court of Justiciary.
The Lord Justice-Clerk. — This may not be a petty
offence. The other day a party came down to Edin-
burgh with £8000, which he had been afraid to trust to
ia London banker to transmit to this city. It Stirely
would nOt have been a petty offence to have endeavoured
to pick that gentleman's pocket, and there is no doubt
AND CIRCUIT COURTS OF JUSTICIARY. 203
that the police havinsf seen the hand in the pocket, was N"- 25.
r o r ' Etch and
quite sufficient to warrant a conviction, without calling the Golf v.
party whose pockets were attempted to be rifled. All locus L
..,.., .,-1,1 1 1 HighCourt.
pcmitenticB must be considered to have been gone when March is.
the hand was inserted in the pocket. Practically, how- — ?-J
I. 1 . 1 . !■ • J. xi 1 Suspension.
consider this a proceeding against the suspenders
as rogues and vagabonds, of which their conduct was the
best and most satisfactory proof that could be desired.
The rest of the Judges concurred, and the note of sus-
pension was accordingly refused, with expenses.
John Leishman, W.S, — Agent.
Henby William Giles, Suspender — Craufurd.
AGAINST
Edmfnd Baxter, Eespondent — Deas.
Suspension — Interlocutor — Jurisdiction. — Held, (1.) That all in-
terlocutors in a cause in an Inferior Court, must be properly signed
as required by law, and that the Court will suspend if any material
stage of the proceedings is left unauthenticated. (2.) That where
the Court has original jurisdiction over the subject matter, they
have also the power of review, although the proceedings are of a
civil nature.
This was a Suspension of a decree of the Justices of No. 26.
the Peace for the county of Forfar, pronounced on a Baxter!
summary complaint, at the instance of the respondent HighComt.
against the complainer, as having contravened the pro- ^^^q
March IS.
visions of the 6th and 7th "Vict. c. 68,^ ' in so far as he ^
Suspension,
1 By the statute eth and 7th Vict., cap. 68, sect. 2, it is enacted,
' That, except as aforesaid, it shall not be lawful for any person to
' have. or keep any house or other place of public resort in Great
' Britain for the public performance of stage plays without authority,
♦ by virtue of letters-patent from her Majesty, her heirs and sucoes-
' SOTS, or predecessors, or without license from the Lord Chamberlain
' of her Majesty's household for the time being, or from the justices
204 CASES BEFORE THE HIGH COURT
No. 26. ' had for sometime back been in the practice of keeping
Baxter. ' opcQ an ercction or booth, m or adjoining to the oea-
High Court- ' gate Street of Dundee, or upon a yard or piece of
7u9. ' ' ground adjoining said Street, and on the north side
Suspension. ' thereof, in the parish of Dundee, and county of Forfar ;
' which erection was formed or composed partly of wood
of the peace, as hereinafter provided ; and every person who shall
offend against this enactment shall be liable to forfeit such sum as
shall be awarded by the court in which, or the justices by whom, ho
shall be convicted, not exceeding £20, for every day on which such
house or place shall have been so kept open by him for the purpose
aforesaid without legal authority.' — Sect. 11, ' That every person
who for hire shall act or represent, or cause, permit, or suffer to be
acted or represented, any part in any stage-play in any place not
being a patent theatre, or duly licensed as a theatre, shall forfeit
such sum as shall be awarded by the court iu which, or the justices
by whom, he shall be convicted, not exceeding £10 for every day
' on which he shall so offend.' — Sect. 19, ' That all the pecuniary penal-
• ties imposed by this act for offences committed in England may be
' recovered in any of her Majesty's Courts of Record at Westminster,
' and for offences committed in Scotland by action or summary com-
' plaint before the Court of Session or Justiciary there ; or for offences
' committed in any part of Great Britain in a summary way before
' two justices of the peace for any county, riding, division, liberty,
' city, or burgh where any such offence shall be committed, by the
' oath or oaths of one or more credible witness or witnesses, or by the
' confession of the offender ; and in default of payment of such penalty,
' together with the costs, the same may be levied by distress and sale
• of the offender's goods and chattels, rendering the overplus to such of-
' fender, if any there be, above the penalty, costs, and charge of dis-
' tress ; and for want of sufficient distress the offender may be impri-
• soned in the common gaol or house of correction of any such county,
' riding, division, liberty, city, or burgh, for any time not exceeding
' six calendar months.' — Sect. 20, ' That it shall be lawful for any
' person who shall think himself aggrieved by any order of such jus-
' tices of the peace, to appeal therefrom to the next general or quarter
' sessions of the peace to be holden for the said county, riding, division,
' liberty, city, or burgh, whose order therein shall be final.' — Sect. 21,
' That the said penalties for any offence against this act shall be paid
' and applied in the first instance toward defraying the expenses in-
' curred by the prosecutor, and the residue thereof (if any) shall be paid
' to the use of her Majesty, her heirs and successors.'
AND CIRCUIT COURTS OF JUSTICIARY. 205
' or canvass, and was partly rested against stone walls, No. ae.
' and was called the ' Sanspareil Theatre,' or by some Baxter.
' other name similar thereto ; and that the complainer HighConrt.
' had been in the habit nightly or frequently performing ^849.^*'
' or causing to be performed, stage plays therein, with- suspension
' out any license or other legal authority being granted
' to him for that purpose, in terms of the provisions of
' the said Act of Parliament ; and particularly, that the
' complainer did, on the evening of Tuesday, the 30th
' day of January 1849, contravene the said recited
' Act of Parliament, by performing, or causing to be
' performed, without any license or other legal authority
' in said erection or booth, a stage play or other enter-
' tainment of the stage called the ' Innkeeper of Abbe-
" ville,' and that bills or programmes thereof, as well as
' of other such representations, given and performed in
' said theatre, were circulated throughout the town of
' Dundee, but without the name and place of abode of
' the manager, as required by the said statute ; and
' generally, that the complainer had carried on and con-
' ducted the said theatre without a license, and had
' performed stage plays therein, in a manner contrary
' to law, and in violation of the provisions of the said
' Act of Parliament.'
The prayer of the complaint was, that the Justices
should grant warrant for summoning the complainer to
appear before any two of their number, at a time and
place to be fixed by them, and failing his so appearing,
to grant warrant for apprehending him, and bringing
him before the Justices for examination, and likewise to
grant warrant for summoning witnesses, to be examined
regarding their knowledge of the premises ; and on proof
thereof, or part thereof by confession, or otherwise, to
find him the said Henry William Giles guilty of con-
travening the foresaid statute ; and to decern against
him for such penalties in respect of such acts of con-
travention, and in terms of the provisions of said sta-
tute as they might consider proper, to be recovered and
206 CASES BEFORE THE HIGH COUBT
No. 26. applied as authorised and directed by said statute, and
Baxter! with the whole costs of procedure and recovery, and to
High Court, do farther and otherwise in the premises as by the said
^ml^' statute their Honours were authorised and empowered
Suspension. *« ^0, and as to their Honours might seem meet.
Upon advising this complaint, the following deliver-
ance was pronounced : —
' Dundee, 31st January 1849. — The Justices subscribing having
' considered the foregoing Petition and Complaint, grant warrant to
' Constables of the Peace and other officers of the law, to serve a
' copy of the said complaint, and of this deliverance, on the said Henry
' Willfam Giles, or Henry Giles complained upon ; and ordain him to
' appear personally before us, or any two or more of Her Majesty's
' Justices of the Peace for the county of Forfar, within the Town
' Hall of Dundee, on Friday the second day of February next, at
' twelve o'clock noon, to answer to the said complaint, with certifica-
' tion : Also grant warrant for summoning witnesses.
' Alex. Lawson, J. P.
' William Thoms, J. P.
No copy of this complaint was served on the com-
plainer until the evening of the day before that on which
he was cited to appear before the Justices, at twelve o'clock
noon. He lodged, however, a short answer to the com-
plaint, denying generally the statement contained in it,
and urging several pleas, amongst others, that the per-
son Robert Geikie, who served the complaint, was not a
constable or admitted officer of Court, in which charac-
ter he had acted, and that, therefore, and upon other
grounds, the complaint must be dismissed.
The Justices, at once and without proof, repelled all
the pleas urged, and refused any prorogation to allow
time to precognosce witnesses against the complainer, or
to adduce witnesses to rebut the charge made against
him. Whereupon the complainer and his agent imme-
diately left the Court, and without any request or order
that the complainer should remain, the Justices went on
with the case in his absence, and pronounced the follow-
ing sentence or conviction : —
ANO CIRCUIT COURTS OF JUSTICIARY. 207
' The Justices having considered the complaint, with the proof ad- No. 26.
' duced, and the whole procedure, find it proved that the said Henry jjaxterl
' William Giles or Henry Giles, complained upon, on the evening — -
' of Tuesday last, the 30th day of January last, did keep open a house March IS."
' or erection of public resort, situated in the Seagate Street of Dundee, ^^^^-
' for the public performance of stage plays, and designed by the name Suspension*.
' of the " Sanspareil," and that there was performed in the said house
' or erection, or theatre, on the evening aforesaid, a play or drama en-
' titled " The Innkeeper of Abbeville," and that without any license in
' favour of the said Henry William Giles, and in contravention of the
' Act of Parliament libelled on : The Justices therefore find, that the
' said Henry William Giles or Henry Giles has, in terms of the said
' Act of Parliament, incurred for the said ofience a penalty not exceed-
' ing £20, but which the Justices hereby modify to £lO, and decern
' and adjudge the said Henry William Giles or Henry Giles instantly
' to make payment to the complainer of the said mitigated penalty of
' £10, hereby awarded, to be accounted for and applied, in the first
' place, towards defraying the expenses incurred by the prosecutor, and
' the remainder thereof to be paid to the use of Her Majesty, or her
' heirs or successors ; a,nd, /ailing pai/ment, grant warrant for levying
' the said penalty by distress and sale of the said Henry William
' Giles's or Henry Giles's goods and chattels, all in terms of the pro-
' visions of the said Act of Parliament, and decern. Five words de-
' leted.
' John Ogilvy.
' Wm. Thoms, J. p.
' Jab. Brown, J. P.
' John Thomson, J. P.
' Alex. Lawson, J. P.'
Amongst the reasons of suspension was the following :
That ' It was illegal and incompetent for the Justices to
' repel all the complainer's defences or pleas without
' proof, and before having proceeded to the consideration
' of the case on the merits, as it is proved they did by
' the minutes of their sederunt, which run, inter alia, in
' these terms : — " The cause being called, and the de-
" fender having failed to appear, Mr William Allen
" Flowerdew, writer in Dundee, appeared for the defen-
" der, and gave in written answers to the complaint,
" which were verbally answered by the Procurator-fiscal ;
" aijid the Justices having considered the objections
" stated on the said answers, and the answers made to
208 CASES BEFOEE THE HIGH COURT
No. 26. « these objections by the Procurator-fiscal, the Justices
Giles ■». J ■' , . . ,
Baxter. " unauimously repelled the whole of these objections.
High Court. ' This minute or interlocutor, or whatever else it may
1849. ' ' be called, was not signed by two Justices, as required.
Suspension. ' nor was it signed even by one. The defences or pleas,
' therefore, which were to exclude the complaint alto-
' gether, have not yet been legally or competently dis-
' posed of.'
The respondent answered, that the interlocutor
repelling the suspender's objections, which had been
pleaded in limine, as a bar to farther procedure, was
pronounced only to the effect of allowing the case to
proceed, and the proof to be led, and was signed by the
preses of the Justices in presence, and with the sanction
of a full bench. Besides, the procedure would have been
unobjectionable, even if there had been no formal inter-
locutor repelling the objections which had been thus urged
as preliminary pleas, these objections being sufficiently dis-
posed of, by going on to consider and to give judgment
upon the merits. There was no necessity, in a case like
this, that the suspender should be present at the proof
and subsequent procedure. The suspender could have
no right, after appearing along with his agent, and join-
ing issue in the cause, to withdraw himself from the
Court, to the effect of creating an objection to the pro-
ceedings, as having been continued and brought to a
close in his absence. He had barred himself, personali
ewceptione, by appearing in Court and pleading to the
complaint, from maintaining any such objection, even if
the statute had contemplated his personal presence.
But there was not a word in the statute to countenance
such a plea ; and it was in no view necessary to enlarge
upon this objection.
The Court having inspected the interlocutor repelling
the objections requesting delay, and finding that it was
not signed, called upon Deas, for the respondent, to sus-
tain the proceedings sought to be suspended, in respect
that the objections thus repelled were directed against the
AND CIRCUIT COURTS OF JUSTICIARY. 209
title to pursue — ^the relevancy of the offence— the compe- No. 26.
tency of the Court — and the regukrity of the citationj Baxter!
observing that it was plainly incompetent to repel such High Court.
objections by an unsigned interlocutor. ^7m.^'
Deas. — These were mere minutes of procedure, which suspension.
ultimately resulted in a conviction, which was signed. It
was not necessary that the narrative of what took place
before the conviction should be signed at each stage of
the proceedings. The conviction was right and regular,
and what took place before might be signed by the
the preses as an authentication.
Lord Justice-Clerk. — I do not think so. I never
heard that the preses could so sign. Two Justices are
required for every stage of the procedure. I do not say
how it would have been had there been no interlocutor
repelling these preliminary defences ; but, however tech-
nical the objection may be, I think the statutory require-
ment must be complied with, and that the signature of two
justices is absolutely necessary to the validity of each
deliverance in the procedure. It is of no consequence
that the objection is a technical one. Were I not to
sign ' I. P. D.' the objection would be technical, but
would nevertheless be fatal.
Deas. — The question then came to be, was the sus-
pension competent in the Justiciary Court. He ought
to have gone to the Civil Court, according to decisions
pronounced in both Courts. This must undoubtedly
have been the case but for the 19th section of the
statute, which gave original jurisdiction to the Court of '
Justiciary. That, however, did not necessarily compre-
hend the power to review proceedings of an inferior
Court, which proceedings were in themselves essentially
of a civil nature. There was no doubt that a suspension
was competent in the Court of Session, as there was
nothing to deprive that Court of its inherent jurisdiction
in all civil causes ; and it having been decided that in all
such cases the subject-matter of the proceedings was
210 CASES BEPORK THE HIGH COURT
No-J6. esseutially of » civil nature, it followed that the Court of
Baxter, Sessiou had exclusive jurisdiction in cases of suspension.
High Court. Farther, by the 20th section of the act, an appeal viras
1849. ■ given to the Quarter Sessions from the decision of the
Suspension. Justiccs, and the party seeking to set aside their decision
ought to have gone there before coming to any superior
tribunal to set aside the conviction.
The Lord Justice-Clerk. — ^^That section is only per-
missive. No doubt you are thereby enabled to go to the
Quarter Sessions, but there is nothing therein to shew
that you are compelled to go there before coming here.
The 19th section gives us jurisdiction over the subject-
matter, and I take it that we have thereby full power of
reviewing the decision of all inferior judicatories. I think
the non-signing of the interlocutor repelling the prelimi-
nary pleas fatal to the whole proceedings. I do not go
on the absence of the complainer, because he voluntarily
left the Court ; but I proceed on the ground that the
proceedings in Courts of Justice must be regularly
authenticated, which, in my opinion, has not been done
in this case.
The other Judges concurred, and the note of suspen-
sion was accordingly passed, with expenses.
W THEBSPOON & Mack — Ddncan & Millah— Agents.
AND CIRCUIT COURTS OF JUSTICIARY. 211
WEST CIRCUIT.
GLASGOW.
Present,
Lords Mackenzie and Moncbeiff. lg4g.
Her Majesty's Advocate — E. F. Maitland, A.D.
AGAINST
Robert Vance. — W. E. Ayton.
Gulp ABIE Homicide. — Circumstances in which the Jury, under the
advice of the presiding Judge, found a pannel not guilty of culpahle
homicide as lihelled, it heing charged that the act, whereby death
was occasioned, was done wickedly and feloniously.
Robert Vance, calico printer, was charged with N0.27.
Culpable Homicide. Vance.
In so FAR AS, on the 9th or 10th day of September 1848, or on one March 23.
or other of the days of that month, or of August immediately preced- 1849.
ing, or of October immediately following, on or near the public road Culpable
or street opposite or near to the house situated in or near Dovesland, Homicide.
at or near Paisley, in the Abbey Parish of Paisley, and shire of Ren-
frew, then and now or lately occupied by Matthew Sim, weaver, then
and now or lately residing there, you the said Robert Vance, did,
wickedly and feloniously, attack and assault the now deceased David
Deans, then a wheeler, and then residing in or near High Carriagehill,
at or near Paisley, and did, with your fist, strike him a severe blow
on or about the head, and did knock him down, and did cause his head
to come violently in contact with the ground ; by all which, or part
thereof, the said David Deans was mortally injured, so that, after
lingering till the 11th day of September 1848, he then died in conse-
quence of the injuries thus received, and was thereby culpably bereaved
of life by you the said Robert Vance.
The evidence in the case was as follows : —
Matthew Sim, weaver. — I live at Dovesland, Paisley. On 29th
September, my brother and some women came to visit me, travelling
in a gig, and put up their horse. The gig stood in front of my house.
I know the prisoner. He was of the party in my house, but did not
212
CASES BEFORE THE HIGH COURT
No. 27.
Robert
Vanee.
Glasgow.
March 23.
1849.
Culpable
Homicide.
come by the gig. The party prepared to get the gig yoked. This
was rather past eleven. An alarm was given that some person had
taken it away. I saw that it was gone. I followed it, seeing it at a
distance going away. There was no horse in it, but it was drawn by
a man. I found it standing on the street. It was brought back to
the front of mj house. Vance was there. He went into the gig to
protect it, and said they that would meddle with it would meddle with
him. Three men, strangers to me, were standing on the opposite side
of the street. They came across and asked Vance ' what do you want
' there.' They had talk rather in the way of quarrelling. The three
had not been at my party. Vance came out of the gig. I was anxious
to secure the gig, but saw Vance and one of the three commence to
fight. I paid no attention to them after that, as I was looking for a
place to put the gig in. I went away with it. When I came back I
found Vance in my house. He was much agitated, and said that if it
was true he had struck Deans he was very sorry for it, as he was the
last he would strike. There was blood on Vance's cheek. I went out
again to see if the three people were gone. They were still there. I
did not know Deans even by sight. I advised the men to go away
before I got Vance to go away from my house.
Oross-ewamined. — The three men were strangers to me. When the
gig was brought back I saw a man, John Cherry, standing on the
pavement. I thought he had taken the gig away. I have known
Vance four years. For any thing I have seen, I consider him a very
quiet inoffensive man.
James Deans. — I am son of the late David Deans. I heard a noise
On Carriagehill on the night of the 9 th of September. I went to see
what it was. I know Vance, and saw him there. He was fighting.
I did not know the man he was fighting with. For all I saw just one
man only. I saw my father there. He was standing behind him. He
had been before a little way off. He said when he went forward,
' stick in Vance.' I thought my father was on the same side as Vance.
Vance then threw back his hand behind him. He did not turn round.
His hand struck my father and he fell backwards. He was not able
to rise, and was carried into a house. In an hour he was taken home
and put to bed. I never saw him rise afterwards. This was on a Sa-
turday and he died on the Monday morning following. I never heard
'him speak after the injury. Vance and my father were acquainted —
were engaged in the same work, and good friends. I saw nothing to
shew that Vance knew that it was my father who was behind him.
Cross-examined. — Vance visited my father on the Sabbath day be-
tween the injury and his death.
Matthew Sim junior. — I am the son of Matthew Sim, a previous
witness. I remember of the gig being taken away and brought back.
Vance was there after it was brought back. Vance stepped into the
gig, and said ' he that meddles with the gig meddles with me.' I went
AND CIRCUIT COURTS OF JUSTICIARY. 213
into the house. I heard the noise of a battle, about ten minutes after . No. 27.
Vance went into the gig. I went out. I saw Vance and another E,ol>ert
man fighting. I knew David Deans. I saw him coming running up — - .
the road behind Vance. He said, ' man. Bob, pelt into him.' Vance ■^/i^^2S
turned and saw Deans sparring. He then struck Deans on the side of 1849.
the head. Deans fell flat on his back. He did not rise. Vance said, Culpable
now ' there's one of your men down.' Deans was carried to a house Homicide.
close by Sim's. Vance then went into our house. Vance had got
spirits, and Deans also. I saw no blood on Vance.
Cross-examined. — I think Deans was sparring at the man fighting
with Vance. There was one fighting with Vance, and afterwards
stripped, keeping the ring as second to the man fighting with Vance.
Vance's fist was closed. After Deans fell he lay about five minutes.
There was a crowd. This was about eleven at night, and it was pitch
dark. The crowd were trampling round where Deans lay. I did not
keep my eye on him all the time he was lying there.
£y the Court. — I don't know if Deans, in coming forward, meant
to be second to Vance.
Agnes White or Garvan. — I live in Paisley. I know Sim's house.
I saw a disturbance there on the 9th of September, t saw Vance
there. He was fighting with a man I did not know. I saw Deans
come up. He and I came up together.. He said, with an oath,
' Vance, stick in, d n him.' We were behind Vance. Deans was
beside me. Vance did nothing when Deans said so, except that he gave
a kind of back lick with the back of his hand. He hit Deans. I was
next him, but crouched or I should have got it. Deans fell and the
back of his head came on a stone like the shot of a gun. I ran away
as soon as he fell, but soon came back again. I looked in his face but
he made no motion. He was the worse of spirits, and I thought it
was that that made him stupid.
Cross-examined. — When Vance threw back his hand the crowd
were pressing on him, both before and behind, so much so that he could
not stir. I thought in throwing back his hand he wished to make
way.
EXCULPATORY EVIDENCE.
Ann M' Alpine. — I knew Deans. I remember an aflfray when
Deans received an injury. 1 did not see the beginning of the battle.
When I first saw Deans two men were supporting him. One said to
the other, ' they are killing one another,' and then they let Deans fall
quite carelessly. He fell towards the side, and the back of his head
struck the ground. The men went forward and let him lie. I did
not see Vance there at this time.
Ayton, in addressing the Jury, on behalf of the pan-
214 CASES BEFORE THE HIGH COURT
No. 27. nel, contended that the facts proved did not support the
v^nc^ charge libelled. Had the blow been originally directed
Glasgow, against an opponent the case might have been different,
^ui9^^' but as it at present stood, it was clear not only that
Culpable "Vance had not intended to strike any person seriously.
Homicide. ^^^ ^^lat he certainly never intended to strike a sup-
porter. The accident did not, in truth, occur during the
fight, it was in preparation for "renewing it, by driving
away persons pressing on himself; and however the pan-
nel might have been criminally responsible for a chanCe
blow struck at another in the course of fighting his op-
ponent, it could not be held that what was done in the
way of clearing the ring was equally culpable as if the
blow had been given by mistake in the course of the
aflfray.
Lord Monceeiff, after conferring with Lord Mac-
kenzie, told the Jury, that although it was evidently a
very light case of culpable homicide, and although, in so
far as the misfortune which befell Deans was concerned,
it was clear that it was imdesigned on the part of the
pannel, yet, in the opinion of the Court, it could not be
said that the pannel was free fi-om blame, inasmuch as
he was engaged in an illegal act at the time, and the
blow was given in the course of the fight ; but as the
case had turned out, though it must be held to be
culpable homicide, yet it could not be said, in the terms
of the libel, that it was done wickedly and feloniously.
The Jiu-y unanimously found the pannel not guifty as
libeUed.
In respect of which verdict of Assize, the pannel was
assoilzed simpliciter, and dismissed from the bar.
AND CIRCUIT COURTS OF JUSTICIARY. 215
WEST CIRCUIT.
STIRLING.
Spring, 1849.
April 17.
Judges — The Lord Justice-Cierk and Lord Wood. 1849.
William Dinwidie, Appellant — E. F. Maitland,
AGAINST
William Knox, Respondent — Logan.
Poor Law Settlement. — Held that a mother cannot acquire a
settlement for her child by a former husband, by means of a joint
industrial settlement with a second husband.
This was an Appeal against a sentence of the Sheriff ^q ^s.
of Stirlingshire. It arose in the following manner : — ^'^q^ "'
The appellant raised an action before the Sheriff of Stir- ' stiiims
ling for the sum of £4:0:9, as the amount of certain ^?g]9^^"
relief advanced by him as inspector of the poor of the . ^^j
parish of Dumfries, on account of Elizabeth Forsyth
Wilson. It appeared that her parents had obtained a
settlement in the parish of Dumfries ; and that in 1831,
when the pauper, in respect of whom the dispute arose,
was five years of age, her father died. In 1832, the
widow married a person of the name of Innes, who,
in the following year, removed with his family, including
Elizabeth Wilson, to the parish of St Ninians, and re-
sided there till 1842, when they all returned to the
parish of Dumfries. Shortly after which, and without
acquiring any settlement, the said Robert Innes died. In
1846, application for interim relief, on behalf as well of
Elizabeth Wilson as of the children of Innes and their
mother, was made to the appellant, who gave the usual
statutory notices to the respon^Jent. The amount ex-
pended on behalf of the widow and children of Innes
was repaid by the respondent, who refused to pay the
sum advanced for the child of the former marriage.
The Sheriff-substitute decerned in favour of the re-
Appeal.
216 CASES BEFORE THE HIGH COURT
No. 28. spondent; and on appeal, the Sheriff pronounced the
Knox, following interlocutor : —
Stirling.
'*'m9.^' ' Stirling, 21st July 1848.— Having advised with the Sheriff, who
had considered the appeal for the pursuer ; Finds, that the pauper
Elizabeth Forsyth Wilson was born in Dumfries of married parents,
and that her father had then acquired a settlement in the parish of
Dumfries, or at least had a settlement elsewhere than in the parish
of St Ninians : Finds, that while the pauper was a pupil, her mother
contracted a second marriage with Robert Innes ; and that her hus-
band, accompanied by her and her child, the said Elizabeth Forsyth
Wilson, removed to the parish of St Ninians, where he acquired a
settlement ; Finds, that the present action is for repayment of cer-
tain sums granted in way of relief to the said Elizabeth Forsyth
Wilson, by the inspector of the poor of the parish of Dumfries, and is
' brought against the inspector of the poor of the parish of St Ninians,
' on the assumed liability of the latter parish to relieve the pauper,
' in respect that a woman who marries a second time acquires the
• settlement which belongs to her second husband, and communicates
• the settlement so acquired to a child of the first marriage incapable
■ of acquiring a settlement in its own right : Finds, that a widow,
■ acquiring a new settlement by marriage with a second husband, does
■ not communicate the settlement so acquired by her to the children
' of her former marriage, and that the settlement of the children con-
' tinues as it existed before the second marriage of their mother;
• Dismisses therefore the appeal, affirms the interlocutor appealed
' from, and decerns. (Signed) ' Job. Hay.'
' Ifote. — The case of the Parish of Crieff against the Parish of
' Fowlis Wester, July 19. 1842, has fixed that a widow may, by in-
' dustrial residence, acquire a settlement for her infant children ; but
' if she marries again, the question arises, whether that will affect the
' settlement of her children previously acquired, whether through her,
' under her industrial residence as a widow, or through their deceased
' father, if his settlement still continue to be his children's at the time
' of their mother's second marriage. The case of Crieff does not, it is
' thought, solve the last at least of these cases, which is the one which
' has now occurred. For, in the present instance, the widow married
' a year after her first husband's death, and, in the following year,
' removed with her second husband from the parish of the settlement
' of her first. It is conceived to be clear, that the mother's residence
' in St Ninians could not directly acquire a settlement for the chil-
' dren of her first marriage, because such residence could not acquire
' a settlement for herself, it being her husband's residence which
' would give her a settlement in that parish. If then the mother
AND CIRCUIT COURTS OP JUSTICIARY. 217
' cannot acquire a settlement for a child by a former marriage when she No. 28.
' is not acquiring a settlement for herself, except derivatively through '^™!"'^'^ '"■
' her husband, it would seem to follow, that her children must retain — r-.
' the settlement they had acquired previous to their mother's second April 17.
' marriage. It is difficult to understand on what principle a married 1 849.
' woman can communicate her second husband's settlement to her Appeal.
' children of a former marriage. (Initialed) J. H.
E. F. Maitland for the Appellant. — This appeal was
brought to decide the question, whether a married wo-
man, haying obtained a settlement by means of industrial
residence, could communicate a right of settlement to a
daughter by a former marriage. The case of the heri-
tors of Crieff against Fowlis Wester had decided that a
widow could do so to her children, and it followed, that
the same result would ensue in respect of children of a
former marriage^ if the widow married again. Assuming
that the mother had a proper settlement at St Ninians,
it followed that the parish in which she was settled, was
bound to Mfil the obligation which previously fell upon
her to support her child. This obligation was not in
any way affected by means of the subsequent marriage.
Farther, the mother took part in the industrial occupa-
tion ; and the parish of St Ninians which had the bene-
fit of that, could not repudiate any obligation ensuing
therefrom, especially as this child was part of the family
of the stepfather.
Logan was not called upon to reply.
LoED Wood. — In this case there is no room for doubt.
Where the parties were settled before 1832, does not
seem clear, but it certainly was not in the parish of St
Ninians. In the year 1831, Wilson the former husband
died, leaving a widow and child, both of whom had then
an undoubted claim of relief against the parish in which
he was settled. In 1832, having married again, the
family, including the child, come to the parish of St
Ninians, where they lived till 1842 ; and in that period
acquired a settlement by means of an industrial residence.
It has been settled, since the case of Crieff, that a widow
218 CASES BEFORE THE HIGH COURT
jj?[°;^fg,j, may, by industrial residence, acquire a settlement for
^"°^- her child, just as a father may ; but in the case of a se-
I'riiT? ^'^^^ marriage, it seems altogether different. A settle-
'849. ment acquired by means of industrial residence, is alto-
Appeai. gether derivative to her. In truth, she seems to fall into
it, rather than to acquire it. There is no ground, there-
fore, for the child to claim relief against the parish in
which her stepfather has resided. Such residence would
not take away the child's right of relief against the
parish of the father's settlement, and I accordingly move
that the sentence of the Sheriff be affirmed.
The Lord Justice-Cleek. — I entirely concur. I as-
sume that at the death of Wilson he had a settlement
in Dumfries, against which parish his child also had a
right. It is quite clear, that no act of the mother could
destroy this right of the child, unless she was able to ac-
quire for it another settlement. The Crieff case was al-
together different. A widow stands in some respects in
the position of a father, but here the mother married
again. By that act her settlement was changed at
once. Suppose that the child became chargeable the
day after the marriage of her mother, could it be said
that she had thereby lost her right against the parish of
her father? or could it be pretended that she had, by her
mother's marriage, obtained a right against the parish to
which her father-in-law belonged ? The argument, that
the parish of St Ninians had gained by the industry of
the wife, was altogether futile, when pleaded as a ground
on which a settlement therein could be obtained for a
child by a former marriage, as the law could only regard
the husband in such a case.
The Appeal was refused, with expenses.
April 26.
1849.
AND CIRCUIT COURTS OF JUSTICIARY. 219
GLASGOW.
Jvtdge — The Lord Justice-Clerk,
P. E. Henderson, Appellant. — Monro.
AGAINST
M'^VuLAY & Co., Respondents. — D. Mackenzie.
Appeal. — Objection to the competency of an appeal sustained, iu
respect it was not lodged within ten days after judgment, disposing of
the merits and matter of expenses, although there was a subsequent
interlocutor in the case.
This action was instituted by the defenders M'Aulay & HOTderson
Co., provision merchants, Glasgow, against Thomas and "• ^'g"''*y
Peter E. Henderson for payment of an account ofTn
£12 : 12 : 8, incurred to the pursuers. Decree in absence April 26.
was obtained against both defenders, and extracted.-
1 ft Appeal.
Thereafter, on the petition of one of the defenders,
P. E. Henderson, he was reponed on consignation of the
previous expenses, and a litigation ensued between the
pursuers and P. E. Henderson, in regard to the liability
of the latter. In the meantime, the other defender,
Thomas Henderson, was charged under the decree ob-
tained against him, and the principal sum recovered from
him. On advising the proofs, the Sheriff-substitute
(Mr Skene) pronounced the following interlocutor :-^
' Glasffoio, %th November 1848. — Having resumed consideration of
' this process, in respect, while the pursuers' proof sufficiently instructs
' the defender Peter E. Henderson's liability for the whole sum sued
' for, it appears from the close of the said proof that the principal sum
' sued for has been recovered from the other defender ; finds the said
' Peter E. Henderson liable to the pursuers in payment of interest
' thereon merely, and finds him also liable to the pursuers in expenses,
' of which allows an account to be lodged, and remits the same to the
* auditor to tax and to report, and decerns.
' George Skene.'
220 CASES BEFORE THE HIGH COURT
No. 32. The defender reclaimed, and thereafter appealed to the
Henderson , , ,i • j. e
V. M'Auiay Sheriff, who adhered, with the variation on the point or
-^ °' expenses, that these were to be allowed subject to large
Aprif 26.' modification. The expenses were taxed and modified on
_J^^!_ the 14th of February 1849, by the Sheriff-substitute, to
Appeal, j^g ^j^.^ interlocutor was acquiesced in, and an extract
of the decree ordered. When the Sheriff-clerk was
making out the extract, it was found that the sum con-
signed by the defender when he was reponed had never
been uplifted, and a motion was lodged by the pursuers
for authority to receive this sum in payment pro tanio
of the modiiied expenses, which was granted on the 21st
February 1849.
An appeal was taken against the judgment at the
next Court of Justiciary, and the appeal was lodged and
intimated on the 8d of March, ten days after the last
interlocutor of 21st February 1849.
Monro, for the appellant, contended, that the final
interlocutor in the action was that of 21st February, and
that the appeal having been lodged within ten days after
that interlocutor was pronounced it was regular and com-
petent.
Mackenzie, for the respondent, objected to the com-
petency of the appeal, in respect that it was not lodged
within ten days of the final judgment or decree in the
cause. By the act 20th Geo. II. c. 43, § 34, an appeal
to the Circuit Court must be taken either at the time of
pronouncing ' final decree and sentence or judgment,'
or within ten days thereafter, by lodging the appeal in
the hands of the clerk of Court. So also, by the Act of
Sederunt of 12th July 1839, appeals are declared ' com-
' petent only after a final judgment has been pronounced,
' and the matter of expenses has been disposed of;' and
the appeal must be taken either at the time of pronoun-
cing such final judgment, or within ten days thereafter.
Now, hero the merits of the action wore disposed of by
the interlocutor of the Sheriff-depute adlicring to that
of the Shcriff-substituto of 8th November 1848, with
AND CIRCUIT COURTS OF JUSTICIARY. 221
the variation, that he held the pursuers entitled to ex- No. 32.
. , n 1 Henderson
penses, but subject to modmcation. That was the nnal ^i.M'Auiay.
judgment or decree on the merits, and the ' matter of ,
expenses was disposed of, and decree given therefor on ApSfse'.
the 14th February 1849. The appeal was not lodged ,
with the clerk of Court within ten days of this decree,
and therefore was incompetent, both under the act of
Parliament and act of Sederunt. The interlocutor of
the 24th February merely authorised the pursuers to
uplift the consigned sum, and to apply them towards
payment of the amount of the modified expenses, and
was neither the final judgment or decree on the merits,
nor the judgment disposing of the matter of expenses.
Held by the Lord Justice-Clerk — That, as by the
act of Parliament and act of Sederunt, the appeal must
be taken within ten days of the final judgment in the
cause, and of the decree disposing of the matter of ex-
penses ; and as the decree here disposing of the expenses
was that of the 14th February 1849, approving of the
auditor's report, modifying the expenses to £6, and de-
cerning therefor, the whole merits having been then dis-
posed of, and as the appeal was not taken within ten
days of such interlocutor, it was incompetent. The in-
terlocutor of the 21st February 1849 was a mere inter-
locutor following on the previous final judgment, and
caused by the defender having incurred an award by
being reponed against a decree in absence.
The appeal was dismissed.
Monro, for the appellant, moved that his Lordship
should modify the expenses.
Lord Justice-Clerk. — I do not in general modify
the expenses in an appeal, but allow the whole expenses
which have been incurred in consequence of the appeal,
subject to proper taxation. Some cases may occur in
which one can safely modify expenses. But the principle
on which I act is, that the successful party in the appeal,
whether appellant or respondent, should not lose in point
of expenses when he gains the appeal.
J 849.
Appeal.
222 CASES BEFORE THE HIGH COURT
Marshall, Appellant. — Monro.
AGAINST
Turner, Eespondent. — Logan.
Appeal— Caution.— Held, 1. That there is no statutory provision re-
quiring a certificate that caution has, been found in an appeal to the
Circuit Court. 2. Circumstances in which, on an allegation that
caution had not been found, the Court offered time to allow the
necessaiy evidence to be produced.
No. 33. This was an appeal from the Sheriff of Lanarkshire.
' Turner. ' On the appeal being called, it was objected by the re-
Giasgow. spondent, that there did not appear to have been any
1849. ' caution found, as required by the statute. It was usual
Appeal, to certify on the back of the appeal that caution had
been duly given; but not only was this certificate
wanting in this case, but there was no certificate of any
kind to shew that caution had been found.
Answered, for the appellant, that caution had in fact
been found, and that the appellant's agent was his
cautioner.
The Lord Justice-Cleek. — ^The statute does not con-
tain any directions as to the production of a certificate
in any form, it only directs caution to be found, which it
is alleged has been done in the present case. If, there-
fore, the respondent disputes this, the case must be
delayed, in order to afford the appellant time to produce
the necessary evidence of the facts. Prima facie, the
objection is not good, as it is very unlikely that the
Sheriff-clerk would have transmitted the appeal, if
caution had not been duly given.
Logan hereupon departed from the objection, and the
case proceeded.
AND CIKCUIT COURTS OP JUSTICIARY. 223
SOUTH CIRCUIT.
Spring, 1849.
DUMFRIES.
Present, ^P^^,'"-
Lonns Moncrieff and Cockburn.
Jane M'Kichbn ob, Chakteks — Cleghorn
AGAINST
Helen Mnm — Welsh.
Appeal — Innkeeper — Lien. — Held that an Innkeeper had a right to
detain the wearing apparel of a guest who neglected to pay his bill
when demanded, even though payment was refused on the ground that
the charges therein exceeded what had been agreed on.
This was an appeal from the Stewart of Kirkcud- No. 29.
bright, against a decision refusing to recognize a lien ». Muir.
claimed by the appellant, under the following circum- Dumfries,
stances : — ^The respondent's husband, who is a dancing- \u9.
master, having periodically given lessons in the village Appeal,
where the appellant lives and keeps an inn, was in the
habit of staying at her house, and had incurred a bill of
a few shillings, when he determined to give a ball to his
scholars, and for that purpose sent for his wife (the re-
spondent in this appeal), together with his daughter, to
assist at the entertainment. They accordingly came,
bringing with them no other clothes than those they
were wearing, save their ball dresses, and took up their
abode at the appellant's house, where they partook of
refreshments, and were furnished with a room in which
they dressed for the ball, and left their ordinary clothes
lying. On their return from the ball, and before leav-
ing, the husband of the respondent called for the bill,
but refused to pay the whole sum, as he alleged that cer-
tain items were charged higher than had been agreed
224 CASES BEFORE THE HIGH COURT
No. 29. on : whereupon the appellant detained the ordinary wear-
■a. Muir. ing apparel of the whole party, leaving them to go nome,
Dumfries, a distance of eight or nine miles, in their ball dresses.
^\u9^' The respondent thereupon presented a petition to the
AppeaL Stewart of Kirkcudbright, praying for restoration of her
wearing apparel, to which answers were given in, and a
proof afterwards allowed by the Stewart-substitute, as to
whether the respondent had any other ordinary wearing
apparel than those detained by the appellant on the oc-
casion in question. On advising the whole case, the
Stewart-substitute ordained the clothes to be delivered
up, founding his judgment on the fact that the respon-
dent had no other clothes in which to go home.
Against this judgment an appeal was taken to the
Circuit Court.
Cleghoen, for the Appellant, pleaded — It was un-
doubted law that an innkeeper had a right of retention
over the luggage of his guests, in security of the debts
incurred by them in that character, and accordingly, if
his bill was not settled, had a right to detain it. This
right was universal, extending to all possible luggage^
and any inconvenience alleged to arise to the respon-
dent in this case, only shewed the efficacy of the right of
retention in forcing a settlement. The proof allowed by
the Stewart-substitute was therefore quite irrelevant,
and his judgment ill founded.
Welsh, for the Respondent, answered — The right
claimed by the appellant amounted substantially to a
right to incarcerate within her inn such customers as re-
fused to pay any bill, however exorbitant ; for, to leave
persons no alternative but that of being either detained,
or walking home several miles in a rainy night in thin
shoes and light muslin dresses, and without bonnets, was.
equivalent to a power of incarceration. But here there
had not even been a refusal to pay the bill, but objec-
tion was made to certain charges, as being contrary to
express agreement.
AND CIRCUIT COURTS OF JUSTICIARY. 225
The respondent was entitled to prevail on another ^°-.2^-
ground, for the debt incurred was a debt of the hus- «. Muir.
band's, and therefore no separate property of the wife, Dumfries,
especially if that property was of a paraphernal character, ]849. "
as in the present case, could be retained in security Appeal.
for it.
Lord Cockburn. — We cannot hear you upon that
point. There is not a word about it in the judgment of
the Inferior Court.
The Court were of opinion that the innkeeper's right
of retention extended to articles of dress retained by
her from the respondent. They therefore altered the
judgment of the Stewart-substitute.
NORTH CIRCUIT.
ABERDEEN.
Present,
Lords Mackenzie and Medwyn. April 24.
1849.
Heb Majesty's Advocate — £>eas A.D.
AGAINST
Christian Duncan — Burnett.
Indictment — Eelevancy — Theft by HousEBREAKiNa.— Circum-
stances which were held sufficient to support a charge of theft by
housebreaking, although the pannel was not charged with using any
other violence than opening the attic door by means of false keys.
Christian Duncan was charged with Theft, by means No. 30.
Christian
of Housebreaking : Duncau.
Aberdeen.
In so far as, on the 14th day of October 1848, or on one or other April 24.
. . . 1849.
of the days of that month, or of September immediately preceding, or
November immediately following, you the said Christian Duncan did. House-
wickedly and feloniously, break into and enter an attic-room of a breaking.
dwelling-house situated in or near Long Acre, in or near Aberdeen,
226 CASES BEFORE THE HIGH COURT
No. 30. the said attic -room being then and now or lately possessed or occupied
*Duncan" ^^ James Reid, a baker, now or lately residing or lodging with Wil-
liam Largue, a spirit-dealer, now or lately residing in or near Hutcheon
'A'prU*24.' Street, in or near Aberdeen, by opening the lockfast door of the said
1849. attic-room by means of a false key or picklock ; and having thus, or
Theft by in some other way or by some means to the prosecutor unknown, ob-
House- tained entrance into the said attic -room, you the said Christian Duncan
breaking. ^.^^ ^^^^ ^^^ ^^^^^^ wickedly and feloniously, steal and theftuously
away take, a book titled ' The Self- Interpreting Bible, with an Evan-
' gelical Commentary by the late Rev. John Brown, Minister of the
' Gospel at Haddington,' or bearing some similar title, the property,
or in the lawful possession, of the said William Largue, or in the law-
ful possession of the said James Eeid ; as also, two hearth-rugs, two
crystal cruets, and a piece of wax-cloth, the property, or in the lawful
possession, of the said James Reid.
Burnett objected to the relevancy of the libel, in so
far as it charged housebreaking. It was necessary to
constitute the aggravation of housebreaking, that the
external security of the dwelling should be violated,
whilst the charge preferred against the pannel was not
only destitute of any allegation to that effect, but plainly
indicated that it was an inner door which she was accused
of having opened, on the security of which the inmates
could not be taken to have relied.
Deas. — It was set forth in the indictment, that Reid,
from whom the articles mentioned were taken, was a
lodger. The attic door was therefore to him an outer
door, as it formed the entrance to his habitation, and
constituted its only safeguard.
The Court sustained the relevancy of the indictment,
Lord Mackenzie remarking, that he had known a case
where the Court sustained an aggravation of housebreak-
ing, the party having broken out of a house which he
entered for the purpose of committing a theft.
The pannel afterwards pled guilty to the charge of
theft, without the aggravation of housebreaking.
In respect of which judicial confession, she was sen-
tenced to be transported for the period of seven years.
AND CIRCUIT COURTS OF JUSTICIARY. 227
Her Majesty's Advocate — Deas A.D.
AGAINST
Ann Ddthie — Burnett.
Indictment — Relevancy — Wanton and Malicious Mischief. —
Circumstances in which the Crown, on the recommendation of the
Court, withdrew a charge of "Wanton and Malicious Mischief, it
pearing that in fact the prisoner's attempt had been abortive.
No. 3K
Ann Duthie was charged with Malicious Mischief; "'^"w^"'
as also Wanton Mischief: Aberdeen.
April 24.
1849.
In so far as, (1.), on the night of the 8th, or morning of the 9th, — — — — -
day of October 1848, or on one or other of the days of that month, or Malicious
of September immediately preceding, or of November immediately fol- Mischief,
lowing, at or near the house situated in or near King Street, in or
near Aberdeen, then and now or lately occupied by John Duncan, then
and now or lately residing there, you the ^aid Ann Duthie did, wick-
edly, wantonly, and mischievously, throw two or more stones or other
hard missiles at one or more of the windows in the said house, with
the intent and for the purpose of breaking the glass of the said win-
dows, or of one or more of them, the property, or in the lawful pos-
session, of the said John Duncan ; and which stones, or one or more of
them, struck forcibly against a wire frame, which, unknown to you
the said Ann Duthie, had been recently before put up on the outside
of the glass of the said windows, or of one or more of them, for their
or its protection, and but for which protection the glass of the said
windows, or of one or more of them, would have been broken by the
stones thrown by you as aforesaid, or by one or more of them ; and
this yon the said Ann Duthie did, while the said windows were, and
were well known to you to be, watched by and under the charge of the
police authorities of Aberdeen, for the express purpose of preventing
you from breaking the said windows, as you had. previously done, or
from throwing stones or other hard missiles thereat, which you never-
theless did as aforesaid, in open defiance of the law and of the said
authorities : Likeas (2.), on the 9th day of October 1848, or on one
or other of the days of that mouth, or of September immediately pre-
ceding, or of November immediately following, at or near the house or
premises situated in or near Huxter Row, in or near Aberdeen, then
and now or lately occupied as the town-house of Aberdeen, you the
said Ann Duthie did, with your hand or hands, or by some other
means to the prosecutor unknown, wickedly, wantonly, maliciously,
and mischievously, break or destroy six, or thereby, panes of glass of
228 CASES BEFORE THE HIGH COURT
No. 3t. one of the windows of {he said last-mentioned house or premises, the
\.iin Dv
thie.
Ann Du- property, or in the lawful possession, of the Burgh of Aberdeen, or of
the Magistrates and Town Council of Aberdeen, for behoof of or as re-
April 24.' presenting the community of Aberdeen.
1849. '
Wantonand BuRNETT objected to the relevancj of the first charge
Mischief, contained in the indictment. It plainly appeared that
the attempts made by the pannel had proved abortive,
and consequently, could not found a relevant minor to a
charge of malicious or wanton mischief, when no mis-
chief in fact ensued. It was immaterial by what means,
or by whose precautions, her attempts had been defeated.
Deas. — But for the strong wire frame which protected
the window, the attempt would have succeeded, and the
law would regard her repeated attempts, if defeated, as
equivalent to the completed offence.
The Court having conferred. Lord Mackenzie recom-
mended that the first charge should be withdrawn. His
Lordship added, that in so doing the Court did not in-
tend to give any opinion on the validity of the objection,
much less to determine the point.
The pannel pleaded guilty to the second charge as
libelled.
In respect of which judicial confession, she was sen-
tenced to be imprisoned for one year. Lord Mackenzie
remarking, that, had there been any precedent to that
effect, he would have passed a sentence of transportation,
in consequence of the number of previous convictions,
nine in number, which had been proved against her.
AND CIRCUIT COURTS OF JUSTICIARY. 229
PERTH.
Present,
LonDs Mackenzie and Medwyn. May 2.
1849.
Her Majesty's Advocate — Deas, A.D.
AGAINST
John Elder Munnocn. — W. G. Dickson.
Indictment — Relevancy. — Objection to the indictment, that the
minor did not answer to the major, repelled.
John Elder Muedoch was charged with Wilfully, No. 34.
Unlawfully, and Maliciously, or the Wilfully, Unlawfully, Murdoch.
-and Recklessly, placing or rolling, and leaving a stone Perth.
upon or between or near the rails of a line of railway, 1349.
used for conveying passengers and goods by locomotive Wiifui
trains or caVriages, in a manner calculated and intended, ^™*8e-
or in a manner calculated to obstruct such trains or
carriages, and to endanger the lives or safety of the
passengers and other persons travelling thereby ; As also,
with contravention of the statute 3d and 4th Vict. c. 97
sect. 15.
In so par as, on the 4th day of March 1849, or on one or other of
the days of that month, or of February immediately preceding, or of
the bypast part of April immediately following, you the said John
Elder Murdoch did, wilfully, unlawfully, and maliciously, or wilfully,
unlawfully, and recklessly, place or roll and leave a large stone, weigh-
ing six hundredweight, or thereby, upon or between or near the rails
of the line of the railway, then and now or lately called the Edinburgh
and Northern Railway, then and now or lately the property, or in the
lawful possession, of the company incorporated by Act of Parliament,
under the name or title of the Edinburgh and Northern Railway
Company, or under some similar or other name or title, and at or near
that part of the said line of railway, situated, 226 yards, or thereby, to
the south-eastward of a bridge which crosses the said line of railway at
or near the farm of Braeside, in or near the parish of Abdie, and
county of Fife, then and now or lately occupied by Andrew Dingwall,
a farmer, then and now or lately residing there, and which bridge is
situated 1640 yards, or thereby, to the north-westward of the Oollessio
230 CASES BEFORE THE HIGH COURT
T ¥°-^^- Station of the said railway : and which line of railway was then used,
John Elder , „ , •' , „ . j
Murdoch, and was well known to you to he used, for conveying passengers and
Pgj^jj goods hy locomotive trains or carriages ; and this you did, in a manner
May 2. calculated, and by you intended, or in a manner calculated to obstrnct
'^*^' the said trains or carriages, and to endanger the lives or safety of the
j^''f"> passengers and other persons travelling thereby ; and more particularly
in a manner calculated, and by you intended, or in a manner calculated
to obstruct a locomotive train or set of carriages driven by locomotive
power, and carrying passengers, which you expected or had reason to
believe would shortly thereafter pass from Perth, or the direction of
Perth, to or towards Burntisland, along that part of the said line of
railway upon or near to which you had placed or rolled and left the
said stone as aforesaid ; and the said stone was so placed or rolled and
left by you as aforesaid, in such manner as to obstruct the said loco-
motive train or set of carriages ; and the said locomotive train or set of
carriages, having a number of passengers and other persons therein or
thereupon, did, shortly after the said stone had been so placed or rolled
and left by you as aforesaid, pass along that part of the said line of
railway upon or near to which you had so placed or rolled and left the
said stone, and the engine and carriages propelling and forming the
said locomotive train, or one or more of them, did come violently in
contact with the said stone, and were thereby obstructed, damaged,
and injured, and the passengers and others conveyed in or upon the said
engine and carriages were thereby put in bodily fear, and their lives
or safety endangered.
Dickson, for the pannel, objected to tlie relevancy of
the common law charges as libelled. The oifences set forth
in the major were both described as crimes of intention,
inasmuch as the word wilfully was contained in each,
whilst in the minor it was said, ' and this you did in a
' manner calculated, and by you intended, or in a man-
^ ner calculated to obstruct the said trains or carriages,
' and to endanger the lives or safety of the passengers
' and other persons travelling thereby,' &c. According
to the major, intention was essential to the commission
of the offence ; but in the minor, by libelling merely that
the act was ' calculated' in the alternative, the libel be-
came illogical and repugnant ; the law recognised a dif-
ference between crimes of recklessness and criminal
design (case of Macbean, 15th April 1847, Inverness,
Arkley, p. 262.) The Crown having charged intent
in the major, could not be allowed to set forth a charge
AND CIRCUIT COURTS OF JUSTICIARY. 231
from which design was excluded, which was manifestly ^o. 34^^^
the case in this indictment, from being placed in the Murdoch.
alternative to the intended act. PoJ^'tJ-
May 2.
Deas. — ^The libel was relevant, had it charged simply 1849.
the ' wilfully, unlawfully, and recklessly placing,' &c. wum
1 1 11 1 1 • • Damage.
a stone ' in a manner calculated to produce the injury
apprehended, it would doubtless have been sufficient,
and it was not the less so from that charge being inter-
woven with another relevant charge. The wilfiil and
reckless act was clearly an oifence, though a less heinous
one than the wilful and malicious.
The objection was repelled.
After evidence led, the Jury found the pannel guilty
of wilfully, unlawfully, and recklessly placing, or rolling
and leaving a stone, &c., and unanimously recommended
him to the mercy of the Court.
In respect of which verdict of Assize, the Court sen-
tenced the pannel to six months imprisonment.
HIGH COURT.
Present,
The Lord Justice-General, June 2.
1849.
The Lord Jdstice-Clerk,
Lords Mackenzie, Moncbeiff, Cockbubn, Wood, and Ivory.
William Telfer, Suspender — Moncreiff.
against
Richard John Moxey, Respondent — Nemes.
Suspension — Relevancy. — Held that it was sufficient, in a police
' complaint, to aver that the suspender had resisted or molested of-
ficers of police iu the execution of their duty, without setting forth
what was the particular duty they were engaged in discharging.
Q
232 CASES BEFORE THE HIGH COURT
No. 35. This was a suspension of a judgment of the Police
Moxey." Court of Edinburgh, arising out of the following circum-
High Court. StaUCOS :
"^ma: By the 136th section of the Edinburgh Police Act, 11th
Suspension, and 12th Victoria, cap. 113, all publicans are prohibited
from selling ale, beer, or exciseable liquors, after eleven
o'clock at night. The respondent had been in the habit
of causing officers from time to time to search the sus-
pender's premises after eleven at night, with the view of
ascertaining whether he allowed drinking in his establish-
ment after that hour. On the evening of Saturday, the
24th of March 1849, the suspender having heard a loud
knocking at the door between eleven and twelve^ inquired
who was there, and was answered " police." He then
unbarred his door, when two persons presented themr
selves in plain clothes, wearing shooting jackets, and one
of them with a cap on, and proceeded, without the exhi-
bition of any warrant, to search the suspender's premises.
In the course of their search, the suspender interfered,
and refused to allow them to proceed farther through
his house without an exhibition of some authority, where-
upon the persons went away.
Three days thereafter, a complaint was served, upon
the suspender, at the instance of the respondent, wherein
he was accused of ' resisting or molesting officers of po-
' lice in the execution of their duty.' On this complaint
evidence was adduced by both parties, in relation to the
facts of the case. On the 30th of March 1849, the pre-
siding Judge found the complaint proved against the
suspender by evidence adduced, and sentenced him to
pay a fine of Two Pounds sterling, or otherwise to be
imprisoned for a period of ten days. The complainer,
with a view to suspension, made consignation of the fine
in the hands of the clerk of the police, and presented
the present note of suspension.
The respondent, in his answers, set forth that the
complainer, when he refused to allow the officers to
search his premises, knew that they were policemen, and
anO circuit courts of justiciary. 233
also that no order, judgment, or conviction could be set No. 35.
aside, under the 107th section of the Edinburgh Police Moxey.'
Act. High Court.
MoNCEEiFF, for the Suspender. — The complaint was 1849."
bad, in respect it did not set forth that the police were suspension.
in the execution of their duty at the time the alleged
resistance offered by the complainer was made. It ought
also to have shewn what the particular duty was which
they professed to discharge. That would have enabled
the party to defend himself against the complaint, by
shewing that the police were not in the exercise of any
legitimate function. This was necessary to be averred,
as otherwise policemen might assume to enter any
private house without warrant, or other lawful cause,
and if they were resisted, might proceed to draw a com-
plaint, such as that now sought to be suspended, and
obtain conviction on a simple proof that he had been
resisted, although the resistance was justifiable in the cir-
cumstances.
Neaves, for the Respondent. — It was set forth in the
complaint, that the party well knew the persons whom
he resisted to be constables, and this must be held to
have been proved by the finding of the Judge. No spe-
cial warrant was necessary for the protection of a police-
man in the execution of his duty, and there was quite
sufficiency of averment here to sustain conviction ; and
cited the precedent of Devitt and Davidson, 12th June
1843, where a similar objection to that now taken was
repelled.^
^ ' Michael Devitt and Rose Davidson, both now or lately private
' soldiers in the 53d Regiment of Foot, and now or lately prisoners in
' the prison of Edinburgh, were charged with rioting and breach of the
' peace, as also assault : In so far as, on the 1st day of April 1843, or
' on one or other of the days of that month, or of March immediately
' preceding, or of May immediately following, on or near that part of
' the High Street of Edinburgh called the Castle Hill, or Castle Hill
' Street, you the said Michael Devitt and Rose Davidson did, both
' and each, or one or other of you, along with a number of evil dis-
' posed persons, to the prosecutor unknown, your companions armed
234 CASES BEFORE THE HIGH COURT
No. 3s. The Lord Justice-General. — The case quoted by Mr
Moxey? Neavos is sufficient authority for our refusing this sus-
High Court, pension, on the ground of any radical defect in the form
1U9.' of the complaint. And, on the merits, I see no reason
Suspension, whatsoever to interfere with the judgment, apart from
the section of the act prohibiting review. In truth, it
would put an end to the whole police business, were we
to sustain objections like this.
The other Judges concurred, and the Court accord-
ingly refused the suspension, with expenses.
John Keegan, S.S.C. — John Bicbabdson, W.S., Agents.
the whole, or greater part of you, with sticks or bludgeons, or other
similar weapons, wickedly and feloniously conduct yourselves in a
riotous and disorderly manner, assaulting and obstructing the patrols
of the police, and other officers of the law, when engaged in the dis-
charge of their duty on the public street, to the great terror and
alarm of the lieges, and in breach of the public peace ; and, in parti-
cular, you the said Michael Devitt and Rose Davidson did, both and
each, or one or other of you, then and there, in a riotous and disor-
derly manner, and in breach of the public peace, wickedly and felo-
niously attack and assault James M'Ginnes, now or lately day patrol
of the Edinburgh Police, and then engaged in the discharge of his
duty as an officer of the law, and did, with sticks, or bludgeons, or
some other similar weapons, or with your fists, knock or fell him to
the ground, and when he was lying there, did repeatedly kick him,
and did with the said weapons inflict many severe blows on his head,
and other parts of his person, by all which he was severely and
cruelly wounded, to the eflTusion of his blood, serious injury of his
person, and imminent danger of his life ; and you did, in like man-
ner, then and there, wickedly and feloniously attack and assault John
' Ross and James Simpson, both now or lately night patrols of the
' Edinburgh Police, and then engaged as officers of the law in the dis-
' charge of their duty, and did, in a riotous and disorderly manner, and
• in breach of the public peace, resist and obstruct them, and did strike
• or knock the said James Simpson to the ground, to the injury of his
■ person ; and all this you did, well knowing that the said James
' M'Ginnes, John Ross, and James Simpson were, all and each, or one
' or more of them, officers of the law, then and there engaged in the
' execution of their duty.'
AND CIRCUIT COURTS OF JUSTICIARY. 235
James Veitch and Others, Suspenders.— .4 . Anderson — G. H.
Pattison.
AGAINST
William Reid, Respondent — Deas.
Sdspension — Statute. — Held, that where a complaint in the Inferior
Court alleged contravention of bye-laws under a statute which were
invalid, it was no answer to a suspension to allege that the alleged
offence was penal at common law.
This was a Suspension of a conviction of the Burffh- No. 36.
^ ° Veitch and
Court of Jedburgh, whereby the complainers were fined in others v.
the sum of 10s. each, or failing instant payment, to be
detained in the Castle of Jedburgh for the space of six June 2.
days respectively, unless the said respective penalties be '- —
. 1 Suspension.
sooner paid.
The matter out of which the complaint arose was as
follows : — It appeared to have been the custom in Jed-
burgh to play a game at ball — a somewhat violent game,
which was played, not by throwing or kicking the ball, but
by two parties, one of whom was in possession of the ball,
pushing against each other, until one of the parties could
' succeed in carrying the ball to the goals respectively at
the other end of the town. This game was played as
usual on the 2d February 1849, previous to which the
Magistrates of the burgh, in consideration of the then
prevalence of cholera, had interdicted the playing of the
game. By the statute of 3d and 4th William IV., c. 46,
entituled ' an act to enable burghs in Scotland to establish
' a general system of police,' provision is made ' for the
' voluntary adoption of that act in said burghs respec-
' tively in manner pointed out, and in case of its adop-
' tion, full power and authority is given' to make all ne-
cessary rules relative to the watching, lighting of gas,
and otherwise paving and cleansing the streets, &c., and,
generally, for the due and effectual performance thereof,
for the prevention of infectious diseases, and putting
236 CASES BEFORE THE HIGH COURT
No. 36. down and removing such nuisances as may affect the
Veiteh and . , , , „
Others v. health of the mhabitants, &c.
- ^"^' The parties who were authorised under this act to carry
^juneT'it into execution, were denominated Commissioners of
.2^!!_ Police.
Suspension, rjij^jg ^^.j. ^^g ^^^^ adopted in the burgh of Jedburgh.
By the act 10th and 11th Vict., c. 39, it was, inter
alia, enacted, that where in a Royal Burgh intending to
adopt in whole or in part the act of William IV., it
should be lawful for the Magistrates of such burghs or
towns, without any previous application of householders,
as by the said act required, to convene the occupiers of pre-
mises of the yearly value of £10, in manner by the said
act directed, to consider and determine whether the pro-
visions of the said act should be wholly or in part adopt-
ed; and it was also enacted, that where the said act
should be in whole or in part adopted in any Royai
Burgh, all the powers and provisions so adopted, should,
instead of being put into execution by commissioners
elected as by said act is prescribed, be put into execution
by the Magistrates and Council of said burghs.
The burgh of Jedburgh is a Royal Burgh, and acting
under the powers of 10th and 11th Vict., c. 39, the
Magistrates convened a meeting of the inhabitants hav-
ing the statutory qualification, at which it was resolved
to adopt the said act.
It appeared that certain bye-laws were passed in pur-
suance thereof, which were embodied in a paper having
the following title : — ' By order of the Commissioners of
' Police, the following regulations shall be strictly ob-
' served as bye-laws within the bounds of police of the
' burgh of Jedburgh,' which included a prohibition of the
customary game of ball.
It was for an alleged violation of these bye-laws that
the complainers were summoned in the court below.
The complaint recited the act of Parliament 3d and 4th
William IV., c. 46 only, and libelled that the parties
had respectively contravened the bye-laws which had been
AND CIRCUIT COURTS OF JUSTICIARY. 237
-niade by the Commissioners of Police, acting under and y^°.^^;|j
by virtue of said statute. others «.
At the hearing before the Chief Magistrate, the par-— ^
ties objected to the relevancy of the libel, which objec- june 2. '
tion was repelled, and the sentence pronounced now 1^ —
, . , , ,1 Suspension.
sought to be suspended.
Pleaded for the Suspenders — ^The sentence was in-
valid, in respect that the first statute of William IV.
had never been acted upon in the burgh of Jedburgh ;
and, consequently, that there was no such persons as
Commissioners of Police entitled to make any bye-law
under that act ; the act of Victoria, which was adopted
in Jedburgh, having conferred the power upon the Ma-
gistrates and Town-Council only, consequently the bye-
law was bad, and as the substantial charge against the
complainers was a violation of this bye-law, and not of
any independent breach of peace, the conviction could
not be sustained.
Pleaded for the Respondents — ^The Magistrates were
eon officio Commissioners of Police at common law, as well
as under the statute ; and as the game sought to be pro-
hibited was eminently dangerous in the time of pestilence,
and was moreover an obstruction to the business of the
town, they had power to prevent the same by giving due
warning, and to punish a violation of their order.
The Lord Justice-Cleek. — The charge is one under
the statute. Nothing is said as to the violation of the
common law.
Deas. — All that was done was competent under the
general powers of police vested in the Magistrates and
Town-Council.
The LoED Justice-Cleek. — We are not here to con-
sider the general powers of the Magistrates and Town-
Council, but to examine the validity of a complaint un-
der a particular statute.
LoED Wood. — Under the act of Victoria, the parties
entitled to make bye-laws are Magistrates, and not Com-
missioners of Police. You libel a contravention of cer-
238 CASES BEFORE THE HIGH COURT
No. 36. tain bye-laws made by the Commissioners of Police, a
Veitch and j j mi i.
Others V. body who never existed in the burgh. That goes to the
Keid. ,
whole case.
High Court. . i • i u
June 2. Deas. — ^That was only a misnomer, which would not
1— vitiate a criminal complaint, especially as the parties
uspension. ^^^ euactcd the bye-laws were entitled, ea,' officio, to
exercise their functions as Commissioners of Police.
The LoED Justice-Clerk. — It is impossible not to
suspend in this case. It is expressly alleged on the face
of the complaint, that the parties enacting the bye^laws
were Commissioners of Police acting under the statute
of William IV., whereas that act was never adopted in
the burgh, except under the provisions of the act of
Victoria, which abolished the statutory functions of the
Commissioners of Police created by the former statute.
Whether or not they could have prohibited the game by
virtue of their common law powers, it is not necessary
to determine — perhaps they might, though I, for one,
should hesitate to encourage the abolition of an old and
customary game, which from time immemorial had been
enjoyed by the community.
The rest of the Court concurred, and the Note of Sus-
pension was accordingly passed, with expenses.
Charles Jameson, Suspender — Deas.
David Pilmeh, Respondent — Nea-ees.
Suspension — Informality. — Circumstances in which it was hehl,
that, where a man had been summarily apprehended without war-
Janie'aon D. ''^°* "'' ^^^^^ intimation of the charge against him before trial, the
Pilmer. conviction could not be sustained.
Hi,s;h Court.
June 2. This was a suspension on the part of Jameson, arising
: — out of the same transaction narrated in the case of
SuBpension-
Ritchie against Pilmer {ante, p. 142.)
AND CIRCUIT COURTS OF JUSTICIARY. 239
In addition to the circumstances referred to in the No. 37.
previous report, the suspender alleged, that ' while he piimer. '
' was assiduously discharging his duty in the vessel, his High Court.
' farther services were very speedily and abruptly inter- "848,
' rupted, and put an end to, by the respondent, Mr Pil- suspension.
' mer, as Superintendent of the Harbour Police, ordering
' a policeman, at the instigation, it is believed, of the
' ship's agent, Mr Jack, to carry off the complainer to
' Bridewell. This was immediately done, without the
' slightest explanation being made to the complainer, and
' without any warrant whatever against him being in
' existence. No accusation or charge even was at this
' time made against the complainer by any one.'
Deas. — The conviction could not be sustained, not only
on the ground of the irregular way in which Jameson
was apprehended, but also on the ground, that having
expected to have had the benefit of his master's evidence,
who had been called as a witness, and whose testimony
would have exonerated him, the Bailie deprived him of
that right by the wrongful proceedings against Ritchie.
Circumstances had prevented him from suspending
sooner, but he had presented his note the earliest mo-
ment he was able.
Neaves. — This suspension was too late, being many
months after the expiry of the sentence, and that undue
delay must be considered in dealing with the case.
The Lord Justice-Clerk. — We think he is entitled
to have his note of suspension entertained, in order to
get free of the conviction now standing against him.
Neaves. — The suspension by the Captain, on the
ground of the informality of the proceedings against him,
had no application. The Court sustained the objection
in his case, on the ground, that having been cited as a wit-
ness, he could not afterwards be summarily charged as a
pannel. Jameson had no interest to complain of the
proceedings adopted against Ritchie. Had he wished
Ritchie as an evidence, he should have moved the Court
to have the cases tried separately ; but no such motion
240 CASES BEFORE THE HIGH COURT
No. 37. was made at the trial, and it was too late to com-
Jameson 'O, „ . , 4. ■ 1
Piimer. plain of any injury that he sustamed irom tne tnal.
High Court, as, in the absence of any objection, it must be held that
"849.' he concurred in the course adopted. In respect of the
Suspension, apprehension, there was nothing incompetent in the way
that was effected. The general powers of the police to
apprehend a person, said to have stolen goods in his pos-
session, could not be doubted ; and it was quite enough
if a regular complaint was preferred against him at the
time of trial.
The Lord Justice-General. — I am decidedly of opi-
nion that there is nothing to warrant the procedure com-
plained of, which seems to me to be contrary to the first
principles of justice. The process is far too summary,
and seems as if intended to try a man without giving him
notice of the charge he is to answer. Having been ap-
prehended without a warrant over night, and consigned
to jail, he hears the charge read to him, for the first time,
when placed at the bar on the following morning, and
he is then deprived of the evidence of his Captain, by
the respondent putting both their names in the complaint.
I do not think this a case where any emergency arose,
calling for an extraordinary exercise of the powers of the
police. On the contrary, I think it utterly unjustifiable
to proceed to try a person on such a charge, without due
and proper notice of the offence intended to be charged
against him.
The Lord Justice-Clerk. — I am of the same opinion.
The Dundee Harbour Act requires, in summary cases,
that the procedure shall either commence by warrant or
by summons; and, according to the law of Scotland,
either of these instruments must bear the cause of appre-
hension or citation. There is no allegation, in this case,
that the suspender was about to escape, so as to render
it necessary to apprehend him, except in the regular
way ; and I am of opinion, that, in that respect, the pro-
cedure cannot be sustained ; and I am also farther of
opinion, that 'on the broad ground of natural justice we
AND CIRCUIT COURTS OF JUSTICIARY. 241
ought to suspend the present conviction. The depriving j^^°J^;
the man of the evidence of his Captain, which, they knew, PJimer.
would exonerate him from the charge, was a most dis- '^f^^J'^'^-
creditable proceeding, and entitles the suspender to our i849.
judgment. Suspension.
Lord Mackenzie. — I am not quite so clear as the
rest of the Court, but I concur in the judgment about to
be pronounced, on the ground that the whole proceedings
were too summary, and that the suspender had not suf-
ficient time or notice to prepare his defence.
LoEDS MoNCREiFF, CocKBURN, WooD, and Ivory con-
curred.
The Court accordingly suspended the charge, with
costs.
WoTHERSPooN and Mack — Lockhart, Hunter, and Whitehead, Agents.
Present,
The Lord Justice-Clerk,
Lords Wood and Ivory. "^"'y ^'
1849.
Her Majesty's Advocate — Deas A.D.
James Chisholm — W. H. Thomson.
Indictment — Theft — Falsehood, Fraud and Wilful Imposition
— Eelevanct. — Circumstances in which a cumulative charge of
falsehood, fraud, &c., together with theft, was sustained as relevant
on the same species facti.
James Chisholm was charged with Falsehood, Fraud, j";^^^-
and Wilful Imposition, as also Theft. chishoim.
High Court.
In so PAR AS, on the 1st day of January 1849, or on one or other of ig^g^"
the days of that month, or of Decemher immediately preceding, or of — —
February immediately following, on or near the farm of Sheriflfhall Fraud, &c.
242 CASES BEFORE THE HIGH COURT
No. 38. Mains, situated in or near the parish of Newton, and county of Edin-
Chisholm ^^^SK tlien and now or lately occupied by George Seton, then and
now or lately tenant of the said farm, and then and now or lately
^'julyT'' residing there, you the said James Ohisholm did, wilfully, wickedly,
1849.' falsely, fraudulently, and feloniously, represent and pretend to the
Falsehood, said George Seton that if he would agree to sell to you five, or
Fraud, &c. thereby, bolls of potatoes, to be delivered by him or by his servant on
the following day, at the shop or premises in or near Stockbridge, then
occupied by Mr Eobb, a victual -dealef, meaning thereby the shop or
premises then occupied by Walter Robb, then and now or lately a
victual-dealer in or near Baker's Place, Stockbridge, in or near Edin-
burgh, or meaning thereby the shop or premises then occupied by some
person of the name of Robb to the prosecutor unknown, you the said
James Chisholm would await the arrival of the said potatoes at the
said shop or premises; and pay the price thereof on delivery ; or yon
did make some other and similar false and fraudulent representation or
representations to the said George Seton ; and the said George Seton
was, by the false and fraudulent representation or representations made
by you to him as aforesaid, or part thereof, induced to agree to sell to
you five, or thereby, bolls of potatoes, at the price of 14s. sterling, or
thereby, per boll, and to send the same on the following day for delivery
at the shop or premises in or near Baker's Place aforesaid, then and
now or lately occupied by the said Walter Robb, under the charge of
James Denny, then and now or lately farm-servant to the said George
Seton, and then and now or lately residing at Sherifi'hall Mains afore-
said ; and the said James Denny having, by directions of the said
George Seton, accordingly, on the following day conveyed the foresaid
quantity of potatoes to Edinburgh, for the purpose of being delivered
as aforesaid, and of receiving payment of the price as aforesaid, and
you having joined the said James Denny at or near Newington, near
Edinburgh, while on his way to Edinburgh as aforesaid, you did prevail
upon the said James Denny to accompany you to the shop or premises
in or near Baker's Place aforesaid, then and now or lately occupied by
the said Walter Robb, and to the shop or premises situated in or near
Higli Street, in or near Edinburgh, then and now or lately occupied
by Thomas Hope, then and now or lately a grocer there, and to the
shop or premises situated in or near Huntly Street, in or near Edin-
burgh, then and now or lately occupied by Alexander Mitchell Dick, a
wine-merchant and grocer, then and now or lately residing there, and
to the shop or premises situated in or near India Place, in or near
Edinburgh, then and now or lately occupied by William Thomson, a
victual-dealer, then and now or lately residing there, or to one or more
of these places, or to some other place or places in or near Edinburgh
to the prosecutor unknown, and you did farther prevail upon the said
James Denny to deliver to the said Walter Robb, Thomas Hope,
Alexander Mitchell Dick, William Thomson, and others aforesaid, or
AND CIRCUIT COURTS OF JUSTICIARY. 243
to some of them, either for your behoof or for their own behoof, as No. 38.
alleged purchasers from you, or otherwise, the said five, or thereby r^^^^f
bolls of potatoes, in various quantities or proportions : and all this or
. .1. r -1 J xi. -J T -r. XI HighCourt.
part thereof, you so prevailed on the said James Denny to do, upon jj,iy 9_
your false and fraudulent representation and promise to him, that you 1"*9-
would, immediately after the said delivery of the said potatoes, pay to Falsehood,
him, for behoof of the said George Seton, the foresaid agreed-on price *™""> °'°"
thereof, which you wilfully, wickedly, and fraudulently failed to do,
and you did wickedly, fraudulently, and feloniously appropriate the
said potatoes, or part thereof, to your own uses and purposes ; and you
did, at or near the shop or premises in or near Baker's Place aforesaid,
and at or near the shop or premises in or near High Street aforesaid,
and at or near the shop or premises in or near Huntly Street aforesaid,
and at or near the shop or premises in or near India Place aforesaid,
all respectively occupied as aforesaid, or at or near one or more of
them, or at or near some place or places in or near Edinburgh to the
prosecutor unknown, wickedly and feloniously, steal and theftuously
away take, in various quantities or proportions as aforesaid, the fore-
said five, or thereby, bolls of potatoes, the property, or in the lawful
possession, of the said George Seton, or in the lawful possession of the
said James Denny ; And you the said James Chisholm have been pre-
viously convicted of falsehood, fraud, and wilful imposition, and you
have been previously convicted of theft.
Thomson objected to the relevancy of the indictment,
in respect that it charged the pannel with two distinct
crimes, whilst only one overt act was set forth. The
theft was nothing more than the successful completion
of the falsehood, fraud, and wilful imposition previously
libelled, the appropriation of the goods being set forth
as the substantive portion of such crime. Case of JRo-
bertson, 25th May 1835 ; Bell's Notes, p. 18.
Deas referred to the case of Grahame, Glasgow Christ-
mas Circuit 1847, where swindling and theft were charged
cumulatively on the same act, and which, although not
objected to by the prisoner, had been adverted upon, and
sustained as competent by the Court.-'
* ' Mabgaret Grahame, now or lately prisoner in the prison of
^ Glasgow, you are indicted and accused, at the instance of Andrew
' Rutherfurd, Esquire, Her Majesty's Advocate for Her Majesty's in-
' terest : That albeit, by the laws of this and of every other well-
' governed realm, Falsehood, Fraud, and Wilful Imposition, especially
244 CASES BEFORE THE HIGH COURT
No. 38. The Lord Justice-Clerk. — The indictment, in the
James . , .
Chishoim. case of Grahame, differs from the present in this respect,
High Court, that the taking possession of the goods was not twice
1849.' — — ^
Falsehood, ' when committed by a person who has been previously convicted
Fraud, &c. i thereof; As also. Theft, are crimes of a heinous nature, and severely
' punishable : Yet tjbub it is and of verity, that you the said Mar-
' garet Grahame are guilty of the said crime of falsehood, fraud, and
' and wilful imposition, aggravated as aforesaid, and of the said crime
' of theft, or of one or other of them, actor, or art and part : In so par
' AS (1.), upon the 24th day of July 1847, or on one or other of the
' days of that month, or of June immediately preceding, or of August
' immediately following, in or near the shop or warehouse situated in
' or near Buchanan Street, in or near Glasgow, then and now or lately
' occupied by Eobertson Buchanan Stewart and John MacDonald,
' then and now or lately carrying on business there as drapers, under
« the firm of Stewart and MacDonald, you the said Margaret Grahame
' did, wickedly and feloniously, falsely, fraudulently, and wilfully, re-
' present' to Benjamin "West, then and now or lately salesman to the said
' Stewart and Macdonald, or to some other person to the prosecutor
' unknown, acting on account of the said Stewart and MacDonald,
' that you had been sent by Miss Paton, residing at No. 8 Newton
' Place, in or near Glasgow, to look at, for her, some merinos or simi-
' lar goods, and to order the same to be sent to her at No. 8 Newton
' Place aforesaid, for inspection, with a view to purchase ; and the said
' Benjamin West, or other person to the prosecutor unknown, was
' thereby, or by some similar false and fraudulent representation made
' ''y yoii 3s aforesaid, imposed upon and induced to send to No. 8
' Newton Place aforesaid, then and now or lately occupied by William
' Patrick Paton, then and now or lately merchant in Glasgow, thirty-
' eight yards, or thereby, of merino, and lining for two dresses, or
' thereby, which you the said Margaret Grahame received and appro-
' priated as after libelled : Farther, time above libelled, at or near
' the house No. 8 Newtou Place aforesaid, you the said Margaret
' Grahame did, wickedly and feloniously, falsely, fraudulently, and
' wilfully, represent to Agnes Lyon, then and now or lately servant
' to the said William Patrick Paton, or in the said house, that a parcel
' containing the articles above libelled, which was then in the said
' house, had been left there by mistake, and that it was intended
' for a Mrs James Paton, or for some other person whom you then
' named, but whose name is to the prosecutor unknown ; and having
' thereby, or by some similar false and fraudulent representation, im-
' posed upon the said Agnes Lyon, and induced her to deliver to you
' the said parcel containing the articles above libelled, or part thereof,
' you did, then and there, wickedly and feloniously, steal and theftu-
AND CIRCUIT COURTS OF JUSTICIARY. 245
libelled as a crime, but was only charged as constituting No. 38.
the theft. The facts constituting the swindling being chishoim.
the various deceptions by which the prisoner had been HighCourt.
July 9.
— 1849.
ously away take, the said parcel containing the articles above libelled, Falsehood,
or part thereof, the property, or in the lawful possession, of the said ^''*"'^> *•=■
Robertson Buchanan Stewart and John MacDouald, or one or other of
them, or in the lawful possession of the said Agnes Lyon : Or other-
wise, time and place last above libelled, you the said Margaret
Grahame did, wickedly and feloniously, steal and theftuously away
take, a parcel, containing the articles above libelled, or part thereof,
the property, or in the lawful possession, of the said Robertson
Buchanan Stewart and John MacDonald, or one or other of them, or
in the lawful possession of the said Agnes Lyon : Likeas (2.), upon
the 7th day of August 1847, or on one or other of the days of that
month, or of July immediately preceding, or of September imme-
diately following, within or near the shop situated in or near Argyle
Street of Glasgow, then and now or lately occupied by John M'ln-
tosh, Ninian Scouller, and James Donaldson, then and now or lately
carrying on business there as drapers, under the firm of M'Intosh,
' Scouller, and Donaldson, you the said Margaret Grahame did, wick-
' edly and feloniously, fasely, fraudulently, and wilfully, represent to
the said Ninian Scouller, and to John Fulton, then and now or lately
salesman to the said M'Intosh, Scouller, and Donaldson, or to one
or other of them, or to some other person to the prosecutor unknown,
acting on account of the said M'Intosh, Scouller, and Donaldson,
that you had been sent by Mr John Young, residing at N. 1 Blythes-
wood Square, in or near Glasgow, or by one or more ladies, members
of his family, or residing in his house, to look at, for him or them,
some tartans or similar goods, and to order the same to be sent to
No. 1 Blytheswood Square aforesaid, for inspection, with a view to
• purchase ; and the said Ninian Scouller and John Fulton, or one or
other of them, or other person to the prosecutor unknown, was there-
by, or by some similar false and fraudulent representation made by
you as aforesaid, imposed upon and induced to send to the house
No. 1 Blytheswood Square aforesaid, then and now or lately occu-
pied by John Young, merchant, then and now or lately residing
there, twenty -four, or thereby, yards of tartan cloth, which you the
said Margaret Grahame received and appropriated as after libelled :
Farther, time above libelled, at or near the house No. 1 Blythes-
wood Square aforesaid, you the said Margaret Grahame did, wicked-
ly and feloniously, falsely, fraudulently, and wilfully, represent to
Margaret Struthers, or to Janet Cochrane, both then and now or
lately servants to the said John Young, or in the said house, that a
parcel containing the tartan cloth above libelled, which was then in
246 CASES BEFORE THE HIGH COURT
No. 38. enabled to eret the aroods into his possession. That case,
James o o i. • j- a
Chishoim. therefore, affords no precedent for the present mdict-
High Court, ment, and the obiection must therefore be sustained.
July 9. ■'
1849.
Falsehood, ' the said house, had been left there by mistake, and that it was in-
Fraud, &c. . tended for a Mr John Young, No. 21 George Square, or for some
' other person whom you then named, but whose name is to the prosecu-
' tor unknown ; and having thereby, or. by some similar false and fran-
' dulent representation, imposed upon the said Margaret Struthers or
' Janet Cochrane, and induced her to deliver to you the said parcel
' containing the tartan cloth above libelled, or part thereof, you did,
' then and there, wickedly and feloniously, steal and theftuously away
' take, the said parcel, containing the tartan cloth above libelled, or
' part thereof, the property,- or in the lawful possession, of the said
' John M'Intosh, Ninian ScouUer, and James Donaldson, or one or
' other of them, or in the lawful possession of the said Margaret Stru-
' thers and Janet Cochrane, or one or other of them : Or otherwise,
' time and place last above libelled, you the said Margaret Graharae
' did, wickedly and feloniously, steal and theftuously away take a
' parcel containing the said tartan cloth above libelled, or part thereof,
' the properly, or in the lawful possession, of the said John M'Intosh,
' Ninian ScouUer, and James Donaldson, or one or other of them, or
' in the lawful possession of the said Margaret Struthers and Janet
' Cochrane, or one or other of them : Likbas (3.), upon the 19th day
' of August 1847, or on one or other of the days of that month, or of
' July immediately preceding, or of September immediately following,
' within or near the shop situated in or near Argyle Street of Glasgow,
' then and now or lately occupied by John Handley, now or lately
' trunkmaker there, you the said Margaret Grahame did, wickedly
' and feloniously, falsely, fraudulently, and wilfully, represent to the
' said John Handley, or to David Lister, then and now or lately ap-
' prentice to the said John Handley, that you had been sent by Mr
' Campbell, No. 305 Saint Vincent Street, in or near Glasgow, to look
' at, for him, or to order some carpet or other bags to be sent to his
' house. No. 305 Saint Vincent Street aforesaid, for inspection, with a
' view to purchase ; and the said John Handley and David Lister, or
' one or other of them, were thereby, or by some similar false and
' fraudulent representation made by you as aforesaid, imposed upon
' and induced to send to No. 305 Saint Vincent Street aforesaid, then
' and now or lately occupied by John Campbell, merchant and ship-
' broker in Glasgow, a carpet bag, and a leather bag, which you the
' said Margaret Grahame received and appropriated as after libelled :
' Further, upon the 20th day of August 1847, or on one or other of
' the days of that month, or of July immediately preceding, or of Sep-
' tember immediately following, at or near the house No. 305 Saint
AND CIRCUIT COURTS OF JUSTICIARY. 247
Lords Wood and Ivory concurred. No- sb.
James
The charge of theft was then withdrawn. CMshoim.
Thomson then objected to the relevancy of the indict- HighCourt.
184.9.
Vincent Street aforesaid, you the said Margaret Grahame, did, ■wick- Falsehood,
edly and feloniously, falsely, fraudulently, and wilfully, represent to ™" '
Margaret Ferguson, then and now or lately servant to, and residing
■with, Sarah Jane Forbes or Campbell, widow, or in the said house,
that the bags above libelled, which were then in the house, had been
left there by mistake, and that they ■were intended for a Mr Robert
Campbell, or for some other person whom you then named, but whose
name is to tlie prosecutor unknown ; and having thereby, or by some
similar false and fraudulent representation, imposed upon the said
Margaret Ferguson, and induce her to deliver to you the said bags
above libelled, you did, then and there, wickedly and feloniously,
steal and theftuonsly away take the two bags above libelled, the
property, or in the lawful possession, of the said John Handley, or
in the lawful possession of the said Margaret Ferguson : Or other -
■ WISE, time and place last above libelled, you the said Margaret
' Grahame did, wickedly and feloniously, steal and theftuously away
' take the two bags above libelled, the property, or in the lawful pos-
' session, of the said John Handley, or in the lawful possession of the
' said Margaret Ferguson : Likbas (4.), upon the 21st day of August
' 1847, or on one or other of the days of that month, or of July im-
• mediately preceding, or of September immediately following, within
• or near the shop situated in or near Argyle Arcade, in or near Glas-
• gow, then and now or lately occupied by Andrew Watson, hosier
■ and glover there, you the said Margaret Grahame did, wickedly and
' feloniously, fasely, fraudulently, and wilfully, represent to Agnes
' Reid, then and now or lately shopwoman to the said Andrew Wat-
' son, or to some other person to the prosecutor unknown, acting on his
' account, that you had been sent by Mr Wingate, No. 141 Bath
' Street, in or near Glasgow, to look at, for him, some travelling-bags,
' and to order the same to be sent to him at No. 141 Bath Street afore-
' said for inspection, with a view to purchase ; and the said Agnes
' Reid, or other person to the prosecutor unknown, was thereby, or by
' some similar false and fraudulent representation made by you as
' aforesaid, imposed upon and induced to send to No. 141 Bath Street
' aforesaid, then and now or lately occupied by Andrew Wingate, then
' and now or lately merchant in Glasgow, three, or thereby, travelling-
' bags, or to deliver the same to Ann M'Intosh, then and now or lately
' in his service as a message-girl, with instructions to carry the same
' to No. 141 Bath Street aforesaid; and you the said Margaret
' Grahame did receive and appropriate the same as after libelled:
' Farther, time last above libelled, at or near the house No. 141
248 CASES BEFORE THE HIGH COURT
No. 38. raent, in so far as it charged swindling, in respect that it
chishoim. did not contain either a statement that the prisoner as-
High court, sumed a false character, whereby he had obtained pos-
July 9.
1849. ■
Falsehood, ' Bath Street aforesaid, you the said Margaret Grahame did, wickedly
Fraud, &o. < ^nj feloniously, falsely, fraudulently, and wilfully, represent to the
' said Ann M'lntosh, who was then in thepossession of the bags above
' libelled, which had been delivered to her as aforesaid, that the said
' Andrew Wingate required the same to be taken to his oflSce situated
' in or near Queen Street, in or near Glasgow ; and the said Ann
' M'lntosh, being thereby imposed upon and induced to accompany
• you into Saint Vincent Lane, in or near Glasgow, or into a close in
' the neighbourhood thereof, you did, then and there, deceive and im-
' pose upon her, and induce her to deliver the said bags to you, by
' falsely, fraudulently, and wilfully, stating or representing to her,
' that you would yourself carry the same to the said Andrew Wingate
' at his office aforesaid, and you did, then and there, receive and ap-
' propriate, and did, wickedly and feloniously, steal and theftnously
' away take, the three travelling-bags above libelled, the property, or
' in the lawful possession, of the said Andrew "Watson, or in the law-
' ful possession of the said Ann M'lntosh : Or otherwise, time last
' above libelled, and in or near Saint Vincent Lane aforesaid, or in
' or near a close in the neighbourhood thereof, you the said Margaret
' Grahame did, wickedly and feloniously, steal and theftuously away
' take the three travelling bags above libelled, the property, or in the
' lawful possession, of the said Andrew Watson, or in the lawful pos-
' session of the said Ann M'lntosh : Likbas (5.), upon the 6th day of
' September 1847, or on one or other of the days of that month, or of
' August immediately preceding, or of October immediately following,
' within or near the shop situated in Argyle Street of Glasgow, then
' and now or lately occupied by Robert Forrester senior, Thomas
' M'Micken, and Robert Forrester junior, then and now or lately car-
' rying on business there as drapers, under the firm of Forresters and
' Company, you the said Margaret Grahame did, wickedly and feloni-
' ously, falsely, fraudulently, and wilfully, represent to Thomas Mor-
' ton, then and now or lately salesman to the said Forrester and Com-
' pany, or to Thomas M'Miken, then and now or lately partner of the
' said firm, or to some other person to the prosecutor unknown, acting
' on their account, that you had been sent by Mrs Smith, residing at
' No. 163 West George Street, in or near Glasgow, to look at, for her,
' some plaids, shawls, and ribbons, or similar goods, and to order the
' same to be sent to her, at No. 163 West George Street aforesaid,
' for inspection, with a view to purchase ; and the said Thomas Mor-
' ton or Thomas M'Miken, or other person to the prosecutor unknown,
' was thereby, or by some similar false and fraudulent representation
AND CIRCUIT DOUBTS OP JUSTICIARY. 249
session of the goods, or that he had had, from the begin- No^^^s.
ning of the transaction, a distinct intention of not paying Chishoim.
for them. There were no data, from which it could be High court.
July 9.
'■ 1849.
made by you as aforesaid, imposed upon and induced to send to Falsehood,
No. 163 West George Street aforesaid, then and now or lately oc- ''*" '
cupied by Isabella Ewing or Smith, widow of the deceased Archibald
Smith of Jordanhill, three, or thereby, woollen plaids, one woollen
shawl, and thirty-two yards, or thereby, of ribbon, which you the
said Margaret Grahame received and appropriated as after libelled :
Farther, time above libelled, at or near the house situated at No.
183 "West George Street aforesaid, you the said Margaret Grahame
did, wickedly and feloniously, falsely, fraudulently, and wilfully,
represent to Ann Maltman or Cecilia Dawson, both then and now
or lately servants to, and residing with, the said Isabella Ewing or
Smith, that a parcel containing the articles last above libelled, which
was then in the said house, had been left there by mistake, and that
it was intended for some other person whom you then named, but
whose name is to the prosecutor unknown ; and having thereby, or
by some similar false and fraudulent representation, imposed upon
the said Ann Maltman or Cecilia Dawson, and induced her to deliver
to you the said parcel containing the articles above libelled, or part
thereof, you did, then and there, wickedly and feloniously, steal and
theftuously away take the said parcel containing the articles last
above libelled, or part thereof, the property, or in the lawful posses-
sion, of the said Robert Forrester senior, Thomas M'Micken, and
Robert Forrester junior, or one or other of them, or in the lawful
possession of the said Ann Maltman and Cecilia Dawson, or one or
other of them : Or otherwise, time and place last above libelled,
you the said Margaret Grahame did, wickedly and feloniously, steal
and theftuously away take, a parcel, containing the articles last
above libelled, or part thereof, the property, or in the lawful posses-
sion, of the said Robert Forrester senior, Thomas M'Micken, and
Robert Forrester junior, or one or other of them, or in the lawful
possession of the said Ann Maltman and Cecilia Dawson, or one or
other of them : Likeas (6.), upon the 20th day of September 1847,
or one or other of the days of that month, or of August immediately
preceding, or of October immediately following, within or near the
shop situated in or near Buchanan Street, in or near Glasgow, then
and now or lately occupied by Andrew Ruiherglen, bookseller, and
stationer there, you the said Margaret Grahame did, wickedly and
feloniously, fasely, fraudulently, and wilfully, represent to the said
Andrew Rntherglen, or to Robert Laird, then and now or lately
shopman to the said Andrew Rutherglen, that you had been sent by
your master, Mr William Corbet, No. 25 Bath Street, in or near
250
CASES BEFORE THE HIGH COURT
No. 38.
James
Chisholm.
High Court,
July 9.
1849.
Falsehood,
Fraud, &c.
inferred that he had committed any crime, all that it
amounted to being, that he had not paid a civil debt.
The Court recommended the libel to be amended, by
the insertion of a statement, that the pursuer had entered
upon the transaction with the intention of not paying
for the goods, if the facts would warrant such a charge,
and intimated that otherwise they would sustain the ob-;
jection.
The Advocate-Depute thereupon withdrew the libel.
Glasgow, to looli at some Bibles, and order the same to be sent to
him at No. 25 Bath Street aforesaid, for inspection, with a view to
purchase the same ; and the said Andrew Rutherglen or Robert
Laird was thereby, or by some similar false and fraudulent repre-
sentation made by you as aforesaid, imposed upon and induced to send
to No. 25 Bath Street aforesaid, then and now or lately occupied by
William Corbet, now or lately powerloom cloth-manufacturer, six,
or thereby, copies of the Bible, each copy consisting of two volumes,
or thereby, which you the said Margaret Grahame received and ap-
propriated as after libelled : Farther, time above libelled, at or
near the house No. 25 Bath Street aforesaid, you the said Margaret
Grahame did, wickedly and feloniously, falsely, fraudulently, and
wilfully, represent to Ann Syme and Christina Stewart, or one or
other of them, both then and now or lately servants to the said William
Corbet, or in the said house, that the Bibles above libelled, which
were then in the said house, had been left there by mistake, and that
it was intended for some person in Regent Street, or elsewhere in or
near Glasgow, to the prosecutor unknown ; and having thereby, or
by some similar false and fraudulent representation, imposed upon
the said Ann Syme and Christina Stewart, or onfr or other of them,
and induced them, or one or other of them, to deliver to you the
Bibles above libelled, or part thereof, you did, then and there, wick-
edly and feloniously, steal and theftuously away take the Bibles
above libelled, or part thereof, the property, or in the lawful posses-
sion, of the said Andrew Rutherglen, or in the lawful possession of
the said Ann Syme and Christina Stewart, or one or other of them :
Or OTHERWISE, time and place last above libelled, you the said Mar-
garet Grahame did, wicked and feloniously, steal and theftuously
away take the Bibles above libelled, or part thereof, the property, or
in the lawful possession, of the said Andrew Rutherglen, or in the
lawful possession of the said Ann Syme or Christina Stewart, or one
or other of them.'
AND CIRCUIT COURTS OF JUSTICIARY. 251
Present as before.
The pannel was again qharged on the following No. 20
amended libel, charging — Chishoim.
High Court.
Your inteutioa truly being all along fraudulently to appropriate the ig49_ '
said potatoes to your own uses and purposes when obtained, without _, , r
making payment for the same ; and all this or part thereof, you so pre- Fraud, &o.
vailed on the said James Denny to do, upon your false and fraudulent
representation and promise to him, which you never at any time in-
tended to fulfil, that you would, immediately after the said delivery of
the said potatoes, pay to him, for behoof of the said George Seton, the
foresaid agreed-on price thereof, which you wilfully, wickedly, and
fraudulently failed to do ; and you did appropriate the said potatoes,
or part thereof, to your own uses and purposes, as after libelled.
After discussion, the Court sustained the amendment
of the libel, it being framed after the model of the
case of Grahame, Lord Ivory, however, stating that
he entertained great doubt as to the competency of
charging what was substantially one act, cumulatively as
two distinct crimes. The other Judges also observed,
that although not incompetent, the more seldom this
was done the better.
Thomson then objected to the relevancy of the charge
of theft, in respect that although fraudulent representa-
tions were charged to have been made by the pannel,
yet a regular contract of sale was set out in the indict-
ment, under which the prisoner had obtained possession
of the goods, consequently there had been a voluntary
transference of the goods to him from the former owner.
The charge of theft by persons appropriating goods al-
ready in their own possession (as servants, porters, hirers
of horses, &c.) had been held relevant, on the theory
that the goods were still constructively in the possession
of their real owners, for whom the parties accused of
stealing them were trustees or custodiers. Here there
was no room for any such theory, as the actual property
in the goods had passed under a regular contract.
252 CASES BEFORE THE HIGH COURT
No. 38. Deas. — The property must be held not to have been
ChiXoto. actually transferred, inasmuch as the bargain, as stated
High Court, in the indictment, was only conditional, on payment
J 849. ' being made simul et semel with the delivery.
Falsehood, The CouET, after consideration, repelled the objection
^'*"'^'*"- on this ground.
The charge of theft having been withdrawn, the pri-
soner pled Guilty to the charge of swindling.
In respect of which judicial confession, the pannel
James Chisholm was sentenced to be imprisoned for the
period of fifteen months.
Present,
The Lord Justice-Clerk,
July 25.
Lords Mackenzie and Cockburn.
Her Majesty's Advocate — Maitland Sol.-Gen. — Deaa A.D.
AGAINST
Agnes Chambers or M'Queen and Helen Henderson —
W. G. Dickson.
Trial. — Circumstances in which, on occasion of the illness of one
pannel, the Court continued the case till a subsequent day, as against
both herself and another party charged as an accomplice.
No. 39. Agnes Chambers or M'Queen and Helen Hender-
chambers SON Were charged with Robbery ; as also Theft :
and Helen
! In so PAR AS, on the morning of the 26th day of June 1849, or on
H^Sh Court, one or other of the days of that month, or of May immediately pre-
1 849. ' ceding, or of the bypast part of July immediately following, in or near
Robbery or ^^^^ Horse Close, otherwise called Boyd's Close, in or near Canon-
Theft, gate aforesaid, you the said Agnes Chambers or M'Queen and Helen
Henderson did, both and each, or one and other of you, wickedly and
feloniously, attack and assault Alexander Wilkie, a cart and wheel
Wright, then and now or lately residing with Angus M'Donald, a gar-
AND CIRCUIT COURTS OF JUSTICIARY. 253
dener, then and now or lately residing at or near Davidson's Mains, in No. 39.
or near the parish of Cramond, and county of Edinburgh, and did rjufi™™
seize hold of him, and did violently push or force hira within or near and Helen
to the said close, and did struggle with him, and did tear his vest, or Henderson.
part thereof, and did by force or violence take from his pocket or per- High Court,
son, and did rob hira of, one shilling and sixpence, or thereby, in silver [849. '
money, and a penny, or thereby, in copper money, the property, or in ^TTT
the lawful possession, of the said Alexander Wilkie : Or otherwise, Theft,
time above libelled, in or near White Horse Close, otherwise called
Boyd's Close, aforesaid, in or near Canongate aforesaid, you the said
Agnes Chambers or M'Queen and Helen Henderson did, both and
each, or one or other of you, wickedly and feloniously, steal and theft-
uously away take, from or near the pocket or person of the said Alex-
ander Wilkie, the silver and copper money above libelled, or part
thereof, the property, or in the lawful possession, of the said Alexan-
der Wilkie.
The pannels having respectively pleaded not guilty to
the charges preferred against them, and been remitted
to the knowledge of an assize, after the jury had been
sworn, and when the examination of the first witness
was commencing, the pannel M'Queen was taken unwell,
and required to be removed from Court. The police
surgeon having been directed by the Court to examine
her, reported on oath, that although sufficiently recovered
to return to the dock without injury to her health, she
w^as not in so collected a state as to be able to suggest
questions to her counsel, or otherwise to defend herself
against the charge.
Under these circumstances the Court refused to allow
the trial to proceed as regarded hej. Some difficulty
was thereupon expressed by the Crown counsel as to the
effect of this contingency upon the case of the other
prisoner, as they wished both to be tried together : in
respect of which, the Lord Justice-Clerk said, that the
Court had no doubt that the trial might be delayed in
the case of both prisoners, if the Crown considered it
expedient the cases should not be separated.
The Solicitor-General slated, that it was very de-
sirable that the pannels should be tried together ; where-
254 CASES BEFORE THE HIGH COURT
No. 39. upon the Court continued the diet against both until the
Chtmbers next day, and the jury impannelled were discharged.
and Helen
Henderson.
Highconrt. On the following day both pannels were tried before
"^184^ ■ another jury from the same list of assize, and both con-
i^iiii^r dieted of robbery.
Theft.
In respect of which verdict of assize, the said Agnes
Chambers or M 'Queen and Helen Henderson were sen-
tenced to be transported for seven years.
Present,
July 25. The Lord Justice-Cleuk.
1849.
Lords Mackenzie and Cockburn.
Her Majesty's Advocate — T. Maitland Sol.-Gen. — Deas A.D.
AGAINST
James Hall, John Howie, and John Stevenson — Pattison and
Burnett.
1. In a charge of Falsehood and Fraud, particularly the fraudulently
' and feloniously obtaining the goods of others upon false pretences
' and appropriating the same, without paying, or intending to pay
' therefor :' Held, that it was not necessary to allege that the pannel
assumed any false character, or that he used any other false pretence
than that of undertakipg to make a cash payment of the price of the
goods, ' he fraudulently and feloniously intending, nevertheless, that
' the said price should not be paid, and that he should appropriate
' the said goods to his own uses and purposes, without payment
' being made therefor ;' and having so appropriated them.
2. A party had used, to a very small extent, the firm of ' J. Stevenson
and Co.,' in Glasgow, where he had attempted to carry on business ;
he was not in business anywhere else ; he fraudulently adhibited the
signature ' J. Stevenson and Co.,' as acceptors to a bill for £200,
dated at Manchester, in order that the bill might be used and uttered
as a bill accepted by a Manchester firm, and the bill was so used
and uttered ; there was no such Manchester firm : Held to be a for-
gery.
AND CIRCUIT COURTS OP JUSTICIARY. 255
James Hall, John Howie, and John Stevenson ^ No. 49.
James Hall
were charged on criminal letters, That albeit, by the laws & othera.
of this and of every other well-governed realm, Falsehood ^f^^^^'^-
and Fraud, particularly the fraudulently and feloniously i849.
obtaining the goods of others upon false pretences, and |^'^^J"'°'|,'
appropriating the same, without paying or intending to
pay therefor ; as also. Forgery ; as also, the wickedly and
feloniously Using and Uttering, as genuine, any Forged
Promissory-Note or other Writing, having thereon any
forged subscription, knowing the same to be forged, are
crimes of an heinous nature, and severely punishable :
Yet true it is and op verity, that the said James Hall and John
Howie are, both and each, or one or other of them, guilty of the said
crimes, or of one or more of them ; and the said John Stevenson is
guilty of the said crimes of forgery and uttering, or one or other of
them, actors or actor, or art and part: In so far as (1.), the said
Jame& Hall having formed a fraudulent and felonious purpose of ob-
taining the goods of others upon false pretences, and appropriating the
same to his own uses and purposes, without paying or intending to pay
therefor, did, in prosecution of the said fraudulent and felonious pur-
pose, on or about the 23d day of May J 848, call at the sale-room or
premises situated in or near Exchange Square, Glasgow, then and now
or lately occupied by Lewis Park and Charles Park, or one or other
of them, carrying on business under the firm of Lewis and Charles
Park, sewed muslin manufacturers there, and did request the said
Lewis Park and Charles Park, or one or other of them, to sell goods
to the amount of £300 sterling, or other considerable amount, to the
order of him the said James Hall, or of the mercantile company or firm
of Henry Hall and Company, for whom the said James Hall repre-
sented that he was acting, and did request the said Lewis Park and
Charles Park, or one or other of them, to send the said goods to certain
premises in or near Buchanan Court, Buchanan Street of Glasgow, as
being the premises occupied by him, or by the said Henry Hall and
Company ; and in order to induce the said Lewis Park and Charles
Park, or one or other of them, to sell the said goods, and to send the
same to the premises in Buchanan Court as aforesaid, the said James
Hall did, on or about the 23d day of May 1848, or on one or other of
the days of the said month of May, or of April immediately preceding,
or of June immediately following, and in or near the sale-room or pre-
mises situated in or near Exchange Square aforesaid, falsely, fraudu-
lently, and feloniously pretend and agree with the said Lewis Park
and Charles Park, or one or other of them, or cause it to be understood
and relied on as between him and them, or one or other of them, that
256 CASES BEFORE THE HIGH COURT
No. iO. the price of the said goods was to be paid for either as in cash transac-
James Hall jj^^^ ^j. ^^ aelivery of the goods, he the said James Hall fraudulently
— and feloniously intending nevertheless that the said price eboulrt not
^jf]^2si^- be paid, and that he should appropriate the said goods to his own uses
1849. and purposes, without payment being made therefor; and the said
Falsehood, Lewis Park and Charles Park, or one or other of them, being induced
Fraud, &c. i,y ^he said false and fraudulent pretence, did then and there sell goods
to the said James Hall, consisting of sewed collars or similar goods, to
the value of £93, 12s. sterling, or thereby, conform to invoice dated
23d May 3 848, contained in an inventory hereunto annexed, and did,
on the same day, or within one or two days thereafter, send the said
goods to the premises in or near Buchanan Court aforesaid, to the ad-
dress of the said Henry Hall and Company, or of the said James Hall ;
and the said James Hall feloniously appropriated the said goods to his
own uses and purposes ; and no part of the price of the said goods has
been paid to the said Lewis Park and Charles Park, or either of them ;
and the said Lewis Park and Charles Park, or one or other of them,
have been thereby falsely and feloniously cozened and defrauded by
the said James Hall : Likeas (2.), the said James Hall and John
Howie having, both and each, or one or other of them, formed a frau-
dulent and felonious purpose of obtaining the goods of others upon
false pretences, and appropriating the same to their own uses and pur-
poses, without paying or intending to pay therefor, did, both and each,
or one or other of them, in prosecution of said fraudulent and felonious
purpose, on various occasions, in the months of November and Decem-
ber 1848, call at the premises or warehouse situated in or near Priory
Lane, of Dunfermline, then and now or lately occupied by Erskine
Beveridge, then and now or lately manufacturer in Dunfermline, and
give orders, and did also transmit written orders, to the said Erskine
Beveridge, for goods to be sent to them, the said James Hall and John
Howie, or one or other of them, at Glasgow, to the address of J. and
J. Hall, or J. and J. Hall and Co., or to some similar address ; and in
order to induce the said Erskine Beveridge to send his goods to them,
or one or other of them as aforesaid, the said James Hall, and John
Howie, as acting with or on behalf of the said James Hall, on various
occasions, in the months of November and December foresaid, more
particularly, the said James Hall, on or about both and each or one or
other of the 9th day of November and the 11th day of December fore-
said, and the said John Howie, on or about both and each or one or
other of the 30th day of November and the 20th day of December
foresaid, or the said James Hall and John Howie respectively, on other
days in the said months of November and December, the particular
days being to the prosecutor unknown, and at or near the premises or
warehouse aforesaid, occupied by the said Erskine Beveridge, and at
or near the inn commonly called Hutton's Inn, situated in or near
Bridge Street of Dunfermline, or at one or other of said places, did,
AND CIRCUIT COURTS OF JUSTICIARY. 257
both and each, or one or other of them, falsely, fraudulently, and felo- No. 40.^^^
niously, represent and pretend to the said Erskine Beveridge and to ^ others.
Henry Meldrum, then and now or lately salesman to the said Erskine ^J^T^^^^
Beveridge, or to one or other of them, that the said James Hall was juiy 25.
one of the Halls of New York, or was Mr Hall of New York, in the ^^^^-
United States of America ; and that he was a partner of, or agent for, Falsehood,
three mercantile firms or companies, one at New York aforesaid, one ™"''
at Manchester, and one at Glasgow, whereas it was well known to
both and each, or chie or other of the said James Hall and John Howie,
that the said James Hall was not one of the Halls of New York, or
Mr Hall of New York aforesaid, and that he was not a partner of, or
agent for, three mercantile firms or companies, one at New York, one
at Manchester, and one at Glasgow aforesaid ; and in order, farther,
to induce the said Erskine Beveridge and Henry Meldrum, or one or
other of them, to send such goods as they the said James Hall and
John Howie, or one or other of them, should order, the said James
Hall and John Howie did, both and each, or one or other of them,
always pretend and agree with the said Erskine Beveridge and Henry
Meldrum, or one or other of them, or cause it to be understood and
relied on as between them the said James Hall and John Howie, or
one or other of them, on the one part, and the said Erskine Beveridge
and Henry Meldrum, or one or other of them, on the other part, that
the price of the said goods when sent was to be paid for either as in
cash transactions, or on delivery of the goods ; which said last-men-
tioned pretence, on the part of the said James Hall and John Howie,
or one or other of them, was likewise false and fraudulent, they felo-
niously intending, nevertheless, that the price of said goods shonld not
be paid, and that the said goods should be appropriated to the uses
and purposes of them, or one or other of them, without payment being
made therefor, or, at least, without payment being made except for a
comparatively small amount of said goods at the commencement of
their dealings with the said Erskine Beveridge and Henry Meldrum,
or one or other of them ; and by the foresaid or similar false and frau-
dulent representations and pretences, or part thereof, the said Erskine
Beveridge and Henry Meldrum, or one or other of them, were induced
to despatch and send, and did despatch and send, linen or other goods
to Glasgow, to the said James Hall and John Howie, or one or other
of them as aforesaid, to the address aforesaid, on various occasions in
the month of December aforesaid ; more particularly (1st), on or about
the 12th day of December foresaid, the said Erskine Beveridge and
Henry Meldrum, or one or other of them, so despatched from Dun-
fermline and sent to Glasgow, to the said James Hall and John Howie,
or one or other of them, linen or other goods, conform to invoice of
said last-mentioned date, contained in Inventory hereunto annexed,
and amounting in value to the sum of £42 : 3 : 8^ sterling, or thereby ;
(2d), on or about the 13th day of December foresaid, the said Erskine
Beveridge and Henry Meldrum, or one or other of them, so despatched
258 CASES BEFORE THE HIGH COURT
No. 40. from Dunfermline and sent to Glasgow, to the said James Hall and
"'ft'oTh^s!' John Howie, or one or other of them, linen or other goods, conform t&
-: invoice of said last-mentioned date, contained in Inventory hereunto
July 26^. ' annexed, and amounting in value to the sum of £64 : 0 : 1 sterling, or
}^^"_ thereby; (3d), on or about the 21st day of December foresaid, the said
Falsehood, Erskine Beveridge and Henry Meldrum, or one or other of them, so
Fraud, &c. despatched from Dunfermline and sent to Glasgow to the said James
Hall and John Howie, or one or other of them, linen or other goods,
conform to invoice of said last -mentioned date, contained in Inventory
hereunto annexed, and amounting in value to the sum of £64 : 15 : 2
sterling, or thereby ; and (4th), on or about the 27th day of December
foresaid, the said Erskine Beveridge and Henry Meldrum, or one or
other of them, so despatched from Dunfermline and sent to Glasgow
to the said James Hall and John Howie, or one or other of them, linen
or other goods, conform to invoice of said last-mentioned date, contained
in Inventory hereunto annexed, amounting in value to the sum of
£22 : 5 : 11 sterling, or thereby ; all which foresaid goods particularly
above specified, or part thereof, were received in or near Glasgow by.
the said James Hall and John Howie, or one or other of them, and
were appropriated by them, or one or other of them, to their own uses
and purposes ; and no part of the price of the foresaid goods, particu-
larly above specified, has been paid to the said Erskine Beveridge or
Henry Meldrum ; and the said Erskine Beveridge has been thereby
falsely and feloniously cozened and defrauded by the said James Hall
and John Howie, or one or other of them : Likeas (3.), in order far-
ther to deceive the said Erskine Beveridge, the said James Hall and
John Howie, along with the said John Stevenson, whose estates bad
been sequestrated under the Bankrupt Act, 2d and 3d Vict., c. 41, on
or about the 16th December 184.9, and who was still undischarged,
and was, time after libelled, in the employment of the said James
Hall as his ofiice-keeper, or was otherwise connected with th»
said James Hall, or one or more of them the said James Hall, John
Howie, and John Stevenson, did, on the 1st day of January 1849,
or on one or other of the days of that month, or of December imme-
diately preceding, or of February immediately following, and in or
near the office situated in or near' Brunswick Street, in or near Glas-
gow, then and now or lately occupied by Alexander Dick junior,
writer in Glasgow, or at some other place in or near Glasgow, to the
prosecutor unknown, write, or cause or procure to be written, a pro-
missory note in the following or similar terms : —
' £200 „ 0 „ 0. ' Manchester !»' Jan? 1849.
' Two months after date we promise to pay to order of Mess" J. & J.
' Hall & Co two hundred pounds value received
' Payable at Mess" Smith, -s
' Payne & C (
Bankers,
' London,'
i
AND CIRCUIT COURTS OF JUSTICIARY. 259
and time last above libelled, as also place last above libelled, or at or j^q_ ^q
near the premises situated in or near Saint Vincent Place, in or near James Hall
Glasgow, then occupied by the said James Hall, or by the mercantile ^'^^"
firm or company of J. & J. Hall & Co., or at some other place in or High Court,
near Glasgow to the prosecutor unknown, the subscription ' J. Steven- \849. '
son & Co.,' was wickedly and feloniously adhibited by the said John „ , . — T"
Stevenson to the said promissory-note, at the desire or with the con- Fraud, &c.
currence of both and each, or one or other of the said James Hall and
John Howie ; and the said subscription was false and forged, being
intended by all and each, or one or more of the said James Hall, John
Howie, and John Stevenson, to pass for, and to be received as,- the
genuine subscription of a mercantile firm or company in Manchester,
carrying on business there under the firm or designation of J. Steven-
son & Co., whereas there was no such mercantile firm or company in
Manchester, carrying on business there, and the foresaid false and
forged subscription was the subscription of a purely fictitious mercan-
tile firm or company ; or, at least, if there was any such firm or mer-
cantile company in Manchester carrying on business there, neither the
said James Hall, John Howie, nor John Stevenson had power or autho-
rity to use or adhibit the signature or subscription of any such mercan-
tile firm or company : Likbas (4.), time and place last above libelled,
the said James Hall, John Howie, and John Stevenson, all and each,
or one or more of them, having caused or procured tiie said false and
forged promissory-note, having thereon the said forged subscription, to
be indorsed by one or other of them the said James Hall, John Howie,
and John Stevenson, or by some other person to the prosecutor un-
known, in the following or similar terms, ' Pay to order of E. Beve-
' ridge Esq'«, J. & J. Hall & Co' upon the false pretence of the same
being a genuine obligation, available to the said Erskine Beveridge,
for the debt due to him in respect of the goods obtained from him as
aforesaid ; and thereafter, the said James Hall, John Howie, and John
Stevenson, all and each, or one or more of them, having caused or pro-
cured the same to be inclosed within a letter, bearing to be dated
' Jany 2'!, 1849,' and to be subscribed with the signature ' J. & J. Hall
' & Co.' and to be addressed to the foresaid Erskine Beveridge, the
said James Hall, John Howie, and John Stevenson, did, all and each,
or one or more of them, upon the 2d day of January 1849, or on one
or other of the days of that month, or of December immediately pre-
ceding, or of February immediately following, and at or near the post-
office situated in or near Glassford Street of Glasgow, or at or near one
or other of the receiving-houses in or near Glasgow where letters are
received or posted for the said post-ofiBce, the particular receiving-
house being to the prosecutor unknown, or at or near some other post-
office in Scotland to the prosecutor unknown, wickedly and feloniously,
use and utter as genuine the said false and forged promissory-note,
having thereon the said forged subscription, they well knowing the
260 CASES BEFORE THE HIGH COURT
No. 40. same to be forged, by putting the foresaid letter, or causing or procur-
"ft'oth^^" ing some person to the prosecutor unknown to put the foresaid letter,
'- containing the said false and forged promissory-note, having thereon
July 25! ' ^^^ ^^^^ forged subscription, into one or other of the post-offices or
1848. receiving-houses aforesaid, the particular post-office or receiving-house
Falsehood, being to the prosecutor unknown, in order that the said false and forged
Fraud, &e. promissory-note, having thereon the said forged subscription, should
be transmitted to the said Erskine Beveridge, and be received by him
as genuine ; and the same was accordingly so received by him in or
near Dunfermline aforesaid, on or about the 3d day of January afore-
said.
Pattison objected to the relevancy of the first charge
of falsehood and fraud. There was no statement in the
minor that there was not a firm of the style of Hall and
Co., nor any equivalent allegation that the pannel Hall
had assumed a false name, character, or errand. Some
such false pretence was requisite to constitute the oiFence
libelled. (Hume, vol. i., p. J 72.) Accordingly, in all
previous cases, some false pretence had been held out,
such as keeping a shop or otherwise, but this charge was
totally destitute of any such allegation.
The Lord Justice-Cleek. — What was found in Hall's
case in 1788 ? (Hume, vol. i., p. 173.)
Pattison. — In Hall's case a shop was hired, and the
false pretence of being a dealer was kept up.
Lord Cockburn. — It is not going into a shop and
buying goods without paying for them that constitutes
the crime ; that it is often done innocently, for a man
may be unable to pay. But the crime here is buying
goods, and procuring delivery, with the intention of not
paying for them at the time. It was the alleged dis-
honest intent charged which constituted the offence, and
that, if proved, was enough.
Lord Mackenzie concurred.
The Lord Justice-Clerk. — ^There is no doubt as to
the relevancy of the charge. It was long ago settled in
Hall's case, which was argued on informations, and has
been the rule ever since.
The objection was repelled.
AND CIRCUIT COURTS OP JUSTICIARY. 261
It appeared in evidence that the bill libelled on was No. 4o.
, 1111 in James Hall
uttered by the pannels, and that there was no such firm & others.
in Manchester as John Stevenson & Co. Highc&urt.
July 25.
The Lord Justice-Clerk, in summing up, told the i849.
Jury, that it was enough to constitute the crime of for- 11^'^''!"'°'^'
gery, that the pannel falsely represented himself in his
signature to a bill, as carrying on business as a member of
a firm in another and distant place from the one where
he uttered the bill. Any person taking a bill signed
' J. Stevenson & Co., Manchester,' would infer the ex-
istence of such a firm there, and consequently suppose
himself possessed of double security.
The Jury found the pannels guilty.
In respect of which verdict of assize, the pannels Hall
and Howie were sentenced to be transported for ten
years, and the pannel Stevenson for seven years.
WEST CIRCUIT.
Autumn- 1849.
GLASGOW.
Present,
Sept. IS.
Lords Mackenzie and Ivory. '^^'"
Her Majesty's Advocate — J. M. Bell A.D, — Cleghorn.
AGAINST
Alexander Feqan and Elizabeth M'Kbnzie ob Hyde
Mackonochie. No. 41.
Alexander
Fegan and
Husband and Wipe — Evidence — Forgery. — Circumstances in Elizabeth
which the question was raised, but not decided, whether a husband ^*™f ®
, , or xivuSa
is admissible as a witness against his wife, accused of forging his
name.
gow.
Sept. 16.
1849.
Alexander Fegan and Elizabeth M'Kenzie or Forgery.
Forgery.
262 CASKS BEFORE THE HIGH COURT
No. 41. Hyde, were charged with Forgery ; as also, the Using
Feg^^nl and uttering as genuine a forged bank order or cheque
mienz* or other writing, for payment of money, having thereon
orHyde^ a forged subscription, knowing the same to be forged :
Glasgow.
^?849.^" In so par as (1.), upon one or other of the days of the month of
" May 1 849, the particular day being to the prosecutor unknown, or of
the month of April immediately preeeding, or of June immediately
following, in or near the house situated in or near Spoutmouth, Gal-
lowgate Street of Glasgow, then and now or lately occupied by Fran-
cis Hyde, now or lately labouring contractor, and now or lately rer
siding there, and by yon the said Elizabeth M'Kenzie or Hyde, wife
of the said Francis Hyde, or one or other of you or at some other
place in or near Glasgow to the prosecutor unknown, you the said
Alexander Fegan and Elizabeth M'Kenzie or Hyde did, both and
each, or one or other of you, wickedly and feloniously, write, or cause
or procure to be written, a bank order or cheque, or other writing, in
the following or similar terms :~
' £16 : 10/3
' Pay to the Bearer Eliza Hyde the sum of Sixteen pound ten
' shillings on producing my deposit Book No 59306.
' To the Managers "J
' of the Glasgow V
' Savings Bank.' J
and you did, then and there, both and each, or one and other of you,
wickedly and feloniously, forge and adhibit, or cause or procure to be
forged and adhibited, to said bank order or cheque, or other writing,
the words or subscription ' Francis Hide,' intending the same to pass
for, and be received as, the genuine subscription of the said Francis
Hyde : Farther, upon the 30th day of May 1849, or on one or other
of the days of that month, or of April immediately preceding, or of
June immediately following, in or near the house or premises situated
in or near Hutcheson Street of Glasgow, then and now or lately occu-
pied as a banking-office by the National Security Savings Bank of
Glasgow, or by James Black senior, now or lately manufacturer in
Glasgow, William Brown, now or lately merchant in Glasgow, and
David Hope, now or lately merchant in Glasgow, and others, or one
or more of them, trustees and managers of the said National Security
Savings Bank of Glasgow, or by Donald Smith, now or lately mana-
ger of the Western Bank of Scotland, treasurer of the Savings Bank
foresaid, Eobert Watson, now or lately actuary of the Savings Bank
foresaid, and William Meikle, now or lately accountant or actuary of
the Savings Bank foresaid, or one or more of them, you the said Alex-
ander Fegan and Elizabeth M'Kenzie or Hyde did, both and each, or
one or other of you, wickedly and feloniously, use and utter, as genu-
AND CIRCUIT COURTS OF JUSTICIARY. 263
'me, the said forged bank order or cheque, or other writing, having No. 41.
thereon the said forged subscription, you knowing the same to be Fegan°an^
forged, by then and there delivering the same, or causing or procuring Elizabeth
the same to be delivered, to John Thomson, now or lately clerk in the ^Hy^g'^
said National Security Savings Bank, and now or lately residing in
Abbotsford Place, Laurieston, in or near Glasgow, and William geptflS.'
Meikle, now or lately accountant or actuary in the Savings Bank '849.
aforesaid, and now or lately residing in Grafton Street of Glasgow, or Forgery,
one or other of them, or to some other officer of the said Savings
Bank to the prosecutor unknown, for the purpose of receiving the
amount of money contained in the said bank order or cheque, or other
writing, which you accordingly did receive, and applied to your own
uses and purposes : Likeas (2.), upon one or other of the days of the
month of May 1849, or of the month of April immediately preceding,
or of June immediately following, the particular day being to the
prosecutor unknown, in or near the house situated in or near Spout-
month aforesaid, or at some other place in or near Glasgow to the
prosecutor unknown, you the said Alexander Fegan and Elizabeth
M'Kenzie or Hyde did, both and each, or one or other of you, wicked-
ly and feloniously, write, or cause or procure to be written, a bank
order or cheque, or other writing, in the following or similar terms : — ■
' £3 : 6s/6d Pay to the Bearer Eliza Hyde three pounds six shillings
' and sixpence, with enterest on producing ray deposit Book N° 59306
' to the Managers of the Glasgow Savings Bank,'
and you did, then and there, both and each, or one or other of you,
wickedly and feloniously, forge and adhibit, or cause or procure to be
forged and adhibited, to said bank order or cheque, or other writing,
the words or subscription ' Frances Hyde,' intending the same to pass
for, and be received as, the genuine subscription of the said Francis
Hyde : Farther, upon the 1st day of June 1849, or on one or other
of the days of that month, or of May immediately preceding, or of
July immediately following, in or near the house or premises situated
in or near Hutcheson Street aforesaid, then and now or lately occu-
pied as a banking-office by the said National Security Savings Bank
of Glasgow, or by the foresaid James Black senior, William Brown,
and David Hope, atd others, or one or more of them, as trustees
and managers foresaid, or by the foresaid Donald Smith, Robert
Watson, and William Meikle, or one or more of them, you the said
Alexander Fegan and Elizabeth M'Kenzie or Hyde did, both and
each, or one or other of you, wickedly and feloniously, use and utter,
as genuine, the said forged bank order or cheque, or other writing,
last above libelled, having thereon the said forged subscription, you
knowing the same to be forged, by then and there delivering the same,
or causing or procuring the same to be delivered, as genuine, to the
said John Thomson and to the said William Meikle, or to one or
other of them, or to some other officer of the said Savings Bank to the
S
264 CASES BEFORE THE HIGH COURT
No. 41. prosecutor unknown, for the purpose of receiving the amount of money
Fe^arTand contained in the said bank order or cheque, or other writing, which
Elizabeth you accordingly did receive, and applied to your own uses and
siptfis'. The diet having been called, the first witness adduced
'^*®' was Francis Hyde, to whose admissibility it was objected,
Forgery. ^^^^ being the husband of one of the pannels at the bar,
he could not be examined.
It was answered, that as the husband was the party
injured, he was necessarily admissible, and that other-
wise, the forgeries of a husband's name by a wife would
go unpunished.
The Court intimated that the point was of sufficient
importance to make it desirable, if possible, that they
should not be pressed to a decision of the question, at
a time when it had emerged suddenly during the pro-
gress of a Circuit.
In these circumstances, and as the male pannel was
the principal object of the prosecution, the Advocate-
Depute gave up the case against the female pannel.
The Jury accordingly returned a verdict of Not
Guilty against the female prisoner, who was dismissed
from the bar.
The case thereafter proceeded against the male pan-
nel, who was convicted, and sentenced to transporta-
tion for the period of fourteen years.
AND CIRCUIT COURTS OP JUSTICIARY. 266
Present,
Sept. 17.
Lord Mackenzie. 1849.
Jane Wyher and Others, Appellants — Broun.
"William Hbndeib, Respondent — W. E. Aytoun.
Appeal — Competency. — Held, that where a suit ad factum prestan-
dum, concluded alternatively for payment of a less sum than £25,
that appeal to the Circuit Court was competent.
This was an Appeal against the judgment of the No. 42.
Sheriff-substitute of Airdrie, refusing to allow a proof others^".
under a petition at the instance of the appellants, craving ^°°'^"^'
restitution of certain articles of household furniture feTu
which had been poinded by the respondent, and which it ^8^9.
was alleged belonged, not to his debtor, George Wyher, Appeal.
husband of one of the appellants, but to her son by a for-
mer marriage.
The articles in question had been part of the goods in
communion in the first marriage, and, on second marriage,
Mrs Wyher had removed with her son and her said fur-
niture to her second husband's house. The poinding
proceeded on the ground that the furniture passed
under the jus mariti of her second husband, and was
attempted to be set aside on the ground, that only
one-third (jure relictce) passed to the second husband,
the other two-thirds being the son's, for whom, as admi-
nistrator, her possession was separate and distinct, and
could not warrant attachment by her own or her hus-
band's creditors.
Appeal came to be heard before Lord Mackenzie.
Aytoun, for the respondent, pleaded as a preliminary
objection, that the conclusions of the summons being ad
factum prcBstandum, the appeal was incompetent.
Beoun answered — ^The petition concluded alternatively
for restitution of the articles, or, failing restitution, pay-
266 CASES BEFORE THE HIGH COURT
No. 42. ment of a sum below £25, as their value. There were
Others «. thus proper pecuniary conclusions for an amount not ex-
"^°^"^' ceediug the statutory sum, and the appeal was therefore
Glasgow. ^ ^
Sept. 17. competent.
Lord Mackenzie had no difficulty in repelling the
objection ; and, after hearing counsel on the merits, he
sustained the appeal, to the effect of allowing a proof.
1849.
Appeal.
John Mathison, Appellant — Broun.
AGAINST
The Monkland Iron and Steel Company, and Alexander W.
Buttery, Respondents — Logan.
Appeal — Competency. — Held, that in an action of mnltiplepoind-
ing, it is the amount admitted by the common debtor which deter-
mines whether an appeal is competent to the Circuit Court, and not
the amount claimed by the respective appearers in the process.
No. 43. This was an Appeal from the judgment of the Sheriff
Mathison of Lanarkshire, to which —
Monkland LoGAN, for the respondents, took a preliminary objec-
ironand ^Jqq ^jjg^t ^g the summous in the court below was one of
steel Co., '
»^f A'®"' multiplepoinding, and as the claims of each party ex-
tery. ceeded £25, there were no proper pecuniary conclusions
Glasgow, for bringing it within the limits of the statutes and relative
1849. Act of Sederunt.
Appeal. Begun, for the appellant — Though the debt set forth
in the claims exceeded £25, the whole debt admitted by
the raisers of the multiplepoinding was below that sum;
the amount admitted by the raisers must be considered
the subject-matter of the suit, the process of multiple-
poinding being wholly irrespective of the amount of debt
due to each party who claimed to be preferred.
Lord Mackenzie, after consulting with Lord Ivory,
repelled the objection to the competency of the appeal*
and the case proceeded on the merits.
AND CIRCUIT COURTS OF JUSTICIARY. 267
1
NORTH CIRCUIT.
Autumn, 1849.
ABERDEEN.
Present,
Sept. 20.
Lords Moncbieff and Cockbdrn. iSiS-
Her Majesty's Advocate. — B. F. Maitland A.D.
AGAINST
William Clark and Janet Gray or Thomson. — C. F. Shand.
Indictment — Murder — Relevancy. — Circumstances in which the
Crown were held not entitled to libel, after describing the person
alleged to have been murdered, ' or some other person to the prose-
cutor unknown.'
William Clark and Janet Gray or Thomson were
charged with Murder :
In so FAR AS, on the 5th day of July 1849, or on one or other of No. 44.
the days of that month, or of June immediately preceding, or of Wiiliam
August immediately following, at or near a part of the public road ja^et Gray
leading from the village of Ellon, in the parish of Ellon, and shire of or
Aberdeen, towards Esslemont House, in the parish of Ellon aforesaid, ,'
then and now or lately occupied by Charles Napier Gordon, Esquire, '^'"^J'^S*""
of Esslemont, which part of said road is situated fifty yards, or there- 1849.
by, or other short distance, westward from the house at or near Craig- j^r ,
hall, in the parish of Ellon aforesaid, then and now or lately occupied
by George Soorgie, a labourer, then aud now or lately residing there,
or on the ground at the side of, or adjoining to, the said part of said
road, or at some other place to the prosecutor unknown in the vicinity
of said part of said road or of the said village of Ellon, you the said
William Clark and Janet Gray or Thomson did, both and each, or one
or other of you, wickedly and feloniously, attack and assault the now
deceased Elizabeth or Bridget Conlie or ConoUy or Clark, wife, or re-
puted wife of, and then or recently before travelling the country in com-
pany with, you the said William Clark, or some other woman, now
deceased, whose name and abode are to the prosecutor unknown, and
did knock or force her down, and did, with a knife, or a razor, or
some other instrument to the prosecutor unknown, which you did in-
troduce into her private part, or by a kick or kicks on or near her
268 CASES BEFORE THE HIGH COURT
No. 44. private part or tlie lower part of her belly, or by some other means
Clarlctnd *° ^^^ prosecutor unknown, inflict two, or thereby, severe wounds
Janet Gray within or near her vagina, to the great effusion of her blood, and did
Thorns n "tl^^rwise maltreat and abuse her ; by all which, or part thereof, the
said Elizabeth or Briget Conlie or ConoUy or Clark, or said other
Sept. 20"' '"'Oman whose name and abode are to the prosecutor unknown, was
1849. mortally injured, and in consequence thereof immediately, or soon
Murder, thereafter, died, and was thus murdered by you the said William
Clark and Janet Gray or Thomson, or tiy one or other of you.
Shand, for the pannels, objected to the relevancy of
the indictment, in so far as, after libelling certain speci-
fic modes by which the deceased was alleged to have
been murdered, it went on to say, ' or by some other
' means to the prosecutor unknown.' This was too
vague. If intended to meet any case not covered by
what preceded, it was much too loose ; and if only in-
tended to refer to the more specific charge before made,
it was unnecessary. It was not pretended that the cir-
cumstances of the case rendered it necessary to take
such a latitude, and it was impossible for a pannel to
meet a charge preferred in so vague terms as those ob-
jected to.
Maitland replied, that the words objected to were
words of style, and were used in almost every case of
the like nature.
Lord Monceeiff. — There is no doubt that the priso-
ner is entitled to know, as far as possible, the exact
charge he is to meet ; and I do not think that in this
case the prosecutor will be entitled to prove any mode
of death differing materially from that which is previ-
ously and more specially charged. The prisoners may
rely upon the protection of the Court in that respect.
At the same time, I am not for sustaining the objection,
to the effect of instantly ordering the words to be de-
leted. Our decision would, doubtless, be founded on as
a precedent, which, sitting in Circuit, I am unwilling to
create in a matter of so much importance.
Lord Cockburn concurred.
The objection was repelled.
AND CIRCUIT COURTS OF JUSTICIARY. 269
Shand then obiected to the words, ' or some other No. u.
Ill William
' woman now deceased, whose name and abode are to ciarkand
' the prosecutor unknown. These words, following the ^"''or "^^
description given of the deceased as the wife of the male '''^'""^"°-
prisoner, seemed to imply that the prosecutor had two 4ep^^2o?"
women in view ; but, if so, he ought to have libelled '"^^-
more specifically. Murder.
Maitland replied — The general words of description
were not intended to denote any other woman than her
whose name had been given, so far as known. All the
information he possessed had been given, but he might
be wrong in believing the deceased to have been the
wife or reputed wife of the pannel ; and it was to meet
any difficulty of that kind which the pannel might occa-
sion, that the general words were used. There was no-
thing incompetent in such a mode of libelling ; for cases
might be supposed where a murder was committed, and
no one be able to say even to what country the de-
ceased belonged.
Lord Cockburn. — I have no doubt of the compe-
tency of prosecuting for the murder of a person who is
utterly, unknown ; but can an indictment stand which
simply charges a prisoner with the murder of a woman
unknown, without giving any account whatsoever of her,
when, and how found ? I think not ; and therefore I
am for sustaining the objection, because, whatever the
prosecutor may have intended in point of construction,
the words objected to might be made to apply to any
dead woman who ever lived in the world.
Lord Moncreiff concurred.
The words objected to were struck out of the indictment.
The case went to trial ; and after hearing .counsel on
both sides, the Jury found a verdict of Not Proven
against both prisoners.
In respect of which verdict of assize, the said William
Clark and Janet Gray or Thomson were assoilzed
simpliciter, and dismissed from the bar.
270
CASES BEFORE THE HIGH COURT
PERTH.
Sept. 26.
1849.
Present,
Lords Moncreiff and Cockburn.
Her Majesty's Advocate — E. F. Maitland A.D.-
W. H. Thomson A. D.
No. 45.
Walter
Duncan.
Perth.
Sept. 26.
1849.
Breach of
Trust and
Embezzle-
ment.
against
Walter Duncan — W. G. Dickson.
Embezlement. — Circumstances in which the Court directed the jurj
to find the pannel guilty of embezzlement, notwithstanding his ac-
counts had been passed, wherein was shewn the true balance due
by him.
W^ ALTER Duncan was charged with Breach of Trust
and Embezzlement :
In so far as, you the said "Walter Duncan having been appointed
treasurer of a friendly society, or other similar association, at or near
Dundee, or carrying on its operations there, calling itself, or known
as, the Prince's Street Yearly Society, or having some similar desig-
nation, of which John Fichet, now or lately a storekeeper in the em-
ployment of Gourlay, Mudie, and Company, engineers and founders
in Dundee, and now or lately residing at or near Albert 'Street of
Dundee, David Smith, a wright, now or lately residing at or near
Ann Street, Maxwelltown of Dundee, Richard Mennie, a shoemaker,
now or lately residing at or near Prince's Street of Dundee, and Wil-
liam Kidd, a mechanic, now or lately residing in or near Union
Street, Maxwelltown of Dundee, or one or more of them, and others,
were individual members, and you the said Walter Duncan having
acted as treasurer aforesaid from the 2d day of November 1848 to at
or about the 29th day of May 1849, both inclusive, and haviilg, dur-
ing the said period, been entrusted as treasurer aforesaid to collect
and receive or hold the funds of the said society, and to receive or
hold the sum of £123, or thereby, borrowed by the said society, or by
you the said Walter Duncan, as treasurer aforesaid, and for behoof of
said society, from the Eastern Bank of Scotland ; and it being the
duty of you the said Walter Duncan, as treasurer aforesaid, to apply
the said funds and borrowed money^ so far as requisite, to the pur-
poses of the.said society, and faithfully to account to the said society,
or the individual members thereof, for the said funds and borrowed
money so entrusted to you, you the said Walter Duncan, did, at one
or more times, between the said 2d day of November 1848 and the
AND CIRCUIT COUllTS OF JUSTICIARY. 271
eaid 29th day of May 1849, both inclusive, the particular time or No. 45.
times being to the prosecutor unknown, in or near the house situated p^^^^
at or near Blackscroft of Dundee, then and lately occupied by you
Perth
the said Walter Duncan, or elsewhere in or near Dundee to the pro- gg^t. 26.
secutor unknown, wickedly and feloniously, and in breach of the trust 1849.
committed to you as aforesaid, embezzle and appropriate to your own Breach of
use the sum of eighty pounds twelve shillings and threepence-half- S"?* *,
penny sterling, or thereby, or part thereof, part of said funds or bor- meat.
rowed money entrusted to you as aforesaid, and did fail to account
therefor to the said society, and to the said John Fitchet, David
Smith, Richard Mennie, and William Kidd, or one or more of them,
and others, the indvidual members thereof.
It appeared in evidence, that the society libelled on
was a yearly sick and funeral society, which commenced
in the November of one year, and lasted till that month
in the year following, when it was wound up, and the
funds, so far as not exhausted, were distributed among
the members. A new society was constituted for the
same purposes immediately afterwards by the members
of the preceding one, and the requisite officers elected.
The pannel had been treasurer of nine of these succes-
sive societies. His duty was to receive the society's
funds, and to pay them to the individuals entitled by
the rules to relief. According to the regulations (which
were printed) the members paid their subscriptions
every Saturday evening ; and the pannel was required
to put the sum so subscribed into bank on the following
Monday, retaining only £8 in his hands to meet the
weekly expenses.
The pannel's books were made up and balanced
monthly, under the eye of a managing committee, when
the balance in his hands was regularly stated against
him, and carried forward to the next month. The
books were open to the society, being produced at their
several meetings.
From the monthly statements and relative documents, it
appeared that the pannel, instead of putting into the bank
the weekly subscriptions, retaining only £8 for current
expenses, had allowed a balance to accumulate against
272 CASES BEFORE THE HIGH COURT
No. 45. him for several successive months of £23, £34, £35,
Duncan. £54, £113 respectively, and lastly, the sum of £80 : 12 : 3
Perth, libelled. It also appeared, that when the immediately
1849. ' preceding society was wound up, there was a balance of
Breach of £22 agaiust him ; notwithstanding which he was elected
Embezzi'e- treasurer of the society libelled. It was proved that
'"^°*" the managing committee had remonstrated verbally
with him regarding his increasing balances, but without
getting any satisfactory explanations. Until the date
libelled, however, they had never become alarmed for
the safety of their funds, or brought the matter formally
before the society by a regular minute.
The pannels books were correctly kept, and he was
not in arrear to any member for sick or funeral allow-
ances. The declaration admitted, that the pannel was
in arrear (but only for about half of the sum proved
against him), and that he had applied the sum so in ar-
rear to his private purposes.
Upon these facts, E. F. Maitland for the Crown,
asked a verdict of guilty.
W. G. Dickson, for the pannel, contended, that al-
though the prosecutor had proved the pannel's retention
of the sum libelled, he had failed to show that the reten-
tion was criminal. In order to make out a charge of
embezzlement, the pannel's act must be proved both to
have been fraudulent, and without the consent of his
employers. But here, there was evidence of the society's
consent for many successive months to the pannel re-
taining a large balance in his hands ; and he was even
re-elected to his oflfice, notwithstanding his having been
very considerably in arrear to the preceding society.
Their consent was therefore proved ; and the sum which
the pannel owed them thereby became a loan from them,
in place of being embezzled.
Lord Cockburn, in summing up, said — That this was
an important case in reference to the law, and to the
criminal responsibility of persons entrusted with the
money of others for special purposes. The Jury need
AND CIRCUIT COURTS OF JUSTICIARY. 273
not feel any anxiety as to the facts ; because none of the ^■. ^•
material ones seemed to be disputed, and they were per- Duncan.
fectly simple. The sole point on which the parties dif- Perth,
fered, was as to the construction, with reference to guilt ^849. '
or innocence, which the ' circumstances ought to re- Breach of
Trust and
CeiVe. Embezzle-
It would be a mistake to suppose that the charge was ™™*'
merely that the prisoner had fallen behind in his ac-
counts. It was, that he had beeu guilty of breach of
trust or embezzlement, or of a wicked and felonious ap-
propriation. The fact of his having been the society's
debtor is admitted. But the question was, did he become
so criminally ? This it was the province of the Jury to
determine, on a review of the whole circumstances. Of
these the principal were, that the prisoner was the officer of
this charitable society. He was not entitled to act at all
for himself. He was the holder of the funds of others ;
and these, arising from the contributions of persons in
humble situations, for the relief of themselves and others
when in distress, were entitled to his most scrupulous
protection, and he had no discretion as to his applica-
tion of them. By the 10th Rule of the Society, he was
allowed to have £8 in his hands to answer current de-
mands ; and every farthing above this, he was expressly
bound to deposit every Monday in the bank for his con-
stituents. He held the money therefore officially, — and
under a special direction as to its custody and application.
He was in the same position as a servant, who had got
cash from his master to carry to a particular place. It
was certain that he violated this official duty. Instead
of only owing the society £8, he at last owed it about
£80. And what was the cause of this deficiency ? No
mistake, — no dispute about the true amount of the balance,
— no direction by the society, — no inadvertent confusion,
or mixing of his own funds wifli theirs. It was, that he
had taken the money to himself. He says in his declara-
tion, ' that the reason he is so deficient is, that he has
' employed the money in his own private matters, and he
274 CASES BEFORE THE HIGH COURT
No. 46. ' is very sorry for having injured the society, who put
Duncan. * Confidence in him.'
Perth. It was for the Jury to say whether they could put
^?849^.^' any construction on this proceeding consistent with the
Breach of prisoucr's innocence ? It seemed to his Lordship very
Embezde- ^^^^ ^^^ common case of an agent, or servant, getting
ment. gash for a special purpose, and making off with it, or
spending it for his own behoof. It was no mere getting
into debt. It was a getting into debt by a direct and
intended self appropriation.
Some things had been urged for the prisoner, — which
certainly deserved the Jury's attention.
One was, that the society had known of his regularly
increasing deficiency without checking it. But, in the
first place, the jury would consider whether their know-
ledge was proved. That they were alarmed is certain ;
for they had spoken to him on the subject. But the
secretary swore that the prisoner put them off by what
had since been found to be, evasive pretences. However,
in the second place, whatever effect this negligence of the
society might have on account in awarding punishment, it
was no legal defence. The prisoner himself admits that
the society confided in him, and he says he is sorry for
having abused their confidence. To urge this confidence
on the part of the employer, as a defence for abusing it,
seems rather an awkward topic for the abuser.
Another was, that the prisoner intended to have replaced
the money. The Jury had better discard this utterly.
Many enormous frauds were committed under the expec-
tation that they may be concealed, or atoned for, by re-
placing the funds before their abstraction shall be de-
tected. This was a common delusion, or pretence, with
embezzlers. But it was no more a defence against fraud,
than it would be against a charge of robbery.
The last was, that the prisoner had the consent of the
society for what he did. If the Jury believed this to be
the fact, they were bound to acquit No party who
consented to it, was either cheated or robbed. But they
AND CIRCUIT COURTS OF JUSTICIARY. 275
must have clear evidence of it, before they could credit No^ «^
so extraordinary a fact, as that a charitable society Dnnean.
agreed to let its treasurer appropriate its funds. His gj^rth^
Lordship was not avirare where the evidence was to be im. '
found here, or anything: that could be mistaken for it. Breach of
. • 1 ■ Trust and
On the whole, there were two opposite considerations, Embezzie-
which the Jury ought to keep in view. On the one '"''°*-
hand, it would be hard and unjust, if the prisoner were
to be sacrificed to the feeling that he had injured a
friendly society. And on the other hand, if he was
guilty, it was important for the law, and as a warning
to the holders of other men's funds, that his guilt should
be declared.
The Jury, after retiring, returned to put a question
to the Court. One of their number pointed out that
there were periodical docquets in the books ; in which
a series of balances far beyond £8 were struck as against
the prisoner, and the question was, whether each of
these docquets was not in law a virtual consent by the
society, that the prisoner might continue to hold the
sums thus set down as due by him ?
LoED CocKBURisr, after consulting with Lord Mon-
creifT, answered, — That they were both of opinion
that, as a matter of law, this was neither the effect nor
the object of the docquets ; but that if the Jury thought
that, as a matter of fact, the docquets indicated consent
by the society, they of course were entitled to put this
construction upon the fact.
The Jury found the pannel guilty as libelled, but
unanimously and strongly recommended him to mercy.
Lord CocEBURisr, addressing the prisoner, said, that
he thought the Jury had disposed of the case humanely
towards him, but firmly towards the law. In the case
that seemed to come nearest this, the Court had sen-
tenced the prisoner to six month's imprisonment ; — cer-
tainly a very lenient sentence. But here there were
two circumstances which operated in the prisoner's fa-
276
CASES BEFORE THE HIGfH COURT
vour. He had already been a considerable period in
jail ; and, to a certain extent, he had been led on by the
society failing to check him effectually the instant it be-
came alarmed. In this situation, the present sentence
Breach of was that of imprisonment for three months.
Trust and
Embezzle-
ment.
No. 45.
Walter
Duncan.
Perth.
Sent. 26.
1849.
N()v. 6.
1849.
Present,
The Lord Justice-Clerk.
Lords Moncreifp and Cockburn.
Her Majesty's Advocate — Beas A.D. — E. F. Maitland A.D.
AGAINST
George Kippen — Logan — A. T. Boyle.
Relevancy — Falsehood, Fraud, and Wilful Imposition. — Cir-
cumstances in which an objection to the relevancy of an indictment,
that it did not charge that the attempt to defraud had been success-
ful, was repelled.
Geoi^^e' GrEORGE KiPPEN, Writer in Glasgow, was indicted,
Kippen. That albeit, by the laws of this and of every other well-
^'g''^""''*- governed realm, Falsehood and Fraud, especially when
1 "49. committed in the form and under colour of legal pro-
Fr'^ud°& ' c®6<ii"gS' ^^*i ^^"^ *^^ purpose of obstructing or defeating
the course of justice, and to the lesion, injury, and op-
pression, of the lieges, is a crime of an heinous nature,
and severely punishable :
Yet true tt is and of verity, that you the said George Kippen
are guilty of the said crime of falsehood and fraud, aggravated as
aforesaid, actor, or art and part : In so par as (1.), the Company of
Proprietors of the Glasgow Water -Works, and Daniel Mackain, now
or lately secretary to the said company, and now or lately residing at
or near Dalmarnock, in or near Glasgow, having, on the 29th day of
February 1848, or about that time, obtained a warrant granted by
Henry Glassford Bell, Esquire, advocate, sheriff-substitute of Lanark-
AND CIRCUIT COURTS OF JUSTICIARY. 277
shire, against you the said George Kippen, and other persons referred No. 46.
to in the said warrant, by which, in respect of your having refused or ifippen.
delayed to pay to the said Company, or the said Daniel Mackain, as jj;„jjCo„rt.
secretary aforesaid, the sum of £l : 8 : 6, being water-rent or rate due Nov. 6.
by you to the said Company, authority was given to oflScers of court "
to enter the premises of you the said George Kippen, and to seize and Falsehood,
1 . » , , n. 1 T 1 • 1 i ii. Fraud, &e.
take possession of your goods and efJeots, and by which warrant autho-
rity was also given to the said Daniel Mackain, as secretary aforesaid,
if the said sum, together with the expense of procedure, should not be
paid within three days after such goods and effects should be so seized
and taken possession of," to sell or dispose of the said effects, or such
part thereof as might be necessary, by public roup, and to apply the
price thereof in payment of the said sum of water- rent or rate due by
you the said George Kippen as aforesaid, with the expenses of proce-
dure ; and you the said George Kippen having formed the wicked and
felonious purpose of obstructing or defeating execution of the said war-
rant, did, on the 19th day of April 1848, or on one or other of the
days of that month, or of March immediately preceding, or of May
immediately following, in or near the house or office at or near Fife
Place aforesaid, then and now or lately occupied by you, or in or near
the sheriff-clerk's office of Glasgow, or at some other place in or near
Glasgow to the prosecutor unknown, falsely, fraudulently, and felo-
niously, devise, and raise, or cause or procure to be raised, a summons
before the ordinary Sheriff-Court of Lanarkshire, at Glasgow, in name
of James M'Gill, sometime provision-merchant in Melville Court,
Trongate Street of Glasgow, and now or lately residing in or near
Little Hamilton Street, Glasgow, or of some wholly fictitious person
designed in the said summons as ' James M'Gill Provision Merchant
' in Glasgow Pursuer,' against the said Daniel Mackain, as secretary
to the said Company of Proprietors of the Glasgow Water-Works, and
for behoof of said Company, setting forth, that the said Daniel Mac-
kain, or an officer acting for him, had, on or about the 12th day of
April 1848, proceeded to the said •James M'Gill, pursuers house in
Adelphi Street, Hutchisontown, Glasgow, and, contrary to his wish,
illegally executed a poinding of certain effects situated therein, for an
arrear of water-rent said to be due to the said Daniel Mackain, de-
fender, and that in carrying into effect the said poinding, the said
Daniel Mackain, defender, or the person acting for him, assaulted and
abused the said James M'Gill, pursuer, and repeatedly knocked him
down, and that the said Daniel Mackain was therefore liable in
damages to the said James M'Gill, pursuer, therefor, and concluding
for payment of the sum of £10 sterling, in name of damages, with ex-
penses of process, or having some similar narrative, allegations, and
conclusions, and containing a warrant or precept of arrestment in com-
mon form, the said summons, in the narrative, allegations, and conclu-
sions thereof, being, and you the said George Kippen well knowing it
278 CASES BEFORE THE HIGH COURT
No. 46. to be, entirely false, fraudulent, and fictitious, and intended for the
ffippfn. purpose of fraudulently obstructing or defeating execution of tbe said
warrant obtained against you by the said company and the said Daniel
Nov.°6. ' Mackain, their secretary, as aforesaid ; and you the said George Kip-
-8^9- pen did, on the said 19th day of April 1848, or on a day, after and
Falsehood, about that time, to the prosecutor unknown, in or near the said house
Fraud, &c. ^^ ^jg^g ^^ ^^ ^g^^j, •pj£g 'place aforesaid, or elsewhere in or near Glas-
gow to the prosecutor unknown, in virtue or on pretence of the war-
rant or precept of arrestment aforesaid, contained in the said false and
fraudulent summons, wickedly, fraudulently, and feloniously, cause or
procure to be served on yourself by John M'Kinlay, then and now or
lately sheriff-oflBcer in Glasgow, and now or lately residing in Mait-
land Street of Cowcaddens, in or near Glasgow, an arrestment, in
name of the said James M'Gill, fencing and arresting, or pretending
to fence and arrest, in the hands of you the said George Kippen, all
moveable goods, debts, and effects, due by you to the said Company,
or to the said Daniel Mackain for their behoof ; and all this you the
said George Kippen did, in pursuance of the wicked and felonious pur-
pose, formed by you as aforesaid, of obstructing or defeating the exe-
cution of the said decree or warrant against you, obtained by the said
Company of Proprietors of the Glasgow Water-Works, and by the
said Daniel Mackain, as before libelled, and to the lesion, injury, and
oppression of the said Company, and of the said Daniel Mackain, or of
one or other of them : Likeas (2.), William M'Lean, a clerk, now or
lately residing at Springvale, in or near Glasgow, having on the 13th
day of April 1848, or about that time, obtained decree before the
Sheriff Small-Debt Court of Glasgow, at his instance against you the
said George Kippen, for the sum of £2 : 6 : 2 of principal, and 48. Id.
of costs, you the said George Kippen, having formed the wicked and
felonious purpose of obstructing or defeating execution of the said de-
cree, did, on the 18th day of April 1848, or on one or other of the
days of the said month of April, or of March immediately preceding,
or of May immediately following, in or near said house or oflBce in or
near Fife Place aforesaid, then and now or lately occupied by you the
said George Kippen, or in or near said Sheriff-clerk's office of Glasgow,
or elsewhere in or near Glasgow to the prosecutor unknown, falsely,
fraudulently, and feloniously, devise, and raise, or cause or procure to
be raised, before the ordinary Sheriff-Court at Glasgow, a summons in
name of James Begbie, now or lately residing in or near Great Dove
Hill, in or near Glasgow, or of some wholly fictitious person, designed
iu the said summons as ' James Begbie Commission Agent Melville
' Court Glasgow, Pursuer,' against the said William M'Lean, setting
forth that the said James Begbie, pursuer, had lent to the said William
M'Lean, defender, on the 15th day of March 1848, the sum of £50
sterling, and that the said sum was wholly owing and unpaid, and con-
cluding for payment of the same, with interest and expenses of pro-
AND CIRCUIT COURTS OF JUSTICIARY. 279
cess, or having some similar narrative, allegations, and conclusions, No. 46.
and containing a warrant or precept of arrestment in common form, Kippen.
the said summons being, in its narrative, allegations, and conclusions, „• i. Court
and you the said George Kippen well knowing it to be, entirely false, Nov. 6.
fraudulent, and fictitious, and intended for the purpose of fraudulently ^^
obstructing or defeating execution of the said decree obtained against Falsehood,
you by the said William M'Lean as aforesaid ; and you the said Georgei '
Kippen did, on the said 18th day of April 1848, or on a day, after and
about that time, to the prosecutor unknown, in or near the said house
or office at or near Fife Place aforesaid, or elsewhere in or near Glas-
gow to the prosecutor unknown, in virtue or on pretence of the said
warrant or precept of arrestment contained in said false and fraudulent
summons last above libelled, wickedly, fraudulently, and feloniously,
cause or procure to be served upon you by the foresaid John M'Kin-
lay, an arrestment in name of James Begbie, fencing and arresting, or
pretending to fence and arrest, in your hands all moveable goods, debts,
and effects due by you to the said "William M'Lean ; and all this you
the said George Kippen did in pursuance of the wicked and felonious
purpose, formed by you as aforesaid, of obstructing or defeating exe-
cution of the said decree against you obtained by the said William
M'Lean, and to the lesion, injury, and oppression of the said William
M'Lean: Likeas (3.), Walter Michael Oppenheim, now or lately
looking-glass merchant in or near Miller Street of Glasgow, and now
or lately residing in Stafford Place, New City Eoad, in or near Glas-
gow, having, in conjoined actions before the Sheriff-Court of Lanark-
shire, at your instance against the said Walter Michael Oppenheim,
which had been advocated to the Court of Session, and thereafter re-
mitted back to the Sheriff of Lanarkshire, obtained, on the 4th day of
February 1848, or about that time, decree in his favour by the said
Henry Glassford Bell, Esquire, sheriff-substitute of Lanarkshire,
against you the said George Kippen, for the sum of £33 : 9 : 9 of ex-
penses of process, and for the sum of Ss. as the expense of extracting
and recording said decree ; and the said decree having been extracted,
and you the said George Kippen having thereafter ajjpealed certain
interlocutors of the Court of Session in said advocation to the House
of Lords, and the Lords of Council and Session having, by interlocutor
of the 5th day of July 1848, allowed interim execution, in terms of
the statute 48th George III., chapter 151, of said decree last above
libelled, you the said George Kippen having formed the wicked and
felonious purpose of obstructing or defeating the execution of the said
decree, did, on the 7th day of July 1848, or on one or other of the
days of that month, or of June immediately preceding, or of Auo-ust
immediately following, in or near said house or office in or near Fife
Place aforesaid, then and now or lately occupied by you the said
George Kippen, or in or near said Sheriff-clerk's office of Glasgow, or
elsewhe;-e in or near Glasgow to the prosecutor unknown, falsely, frau--
T
280 CASES BEFORE THE HIGH COURT
No. 46. dulently, and feloniously, devise and raise, or cause to be raised, be-
ffitraln ^°'® ^^^ ordinary Sheriff-Court at Glasgow, a summons, in name of
— — — Robert Eussell, now or lately a gas-surveyor, and now or lately resid-
JNov. 6. ' ^^S '° or near Gallowgate Street of Glasgow, or of some wholly ficti-
i'!^9- tious person, designed in the said summons as. ' Robert Russell, some-
Falsehood, ' time brickmaker in Glasgow, and residing there, pursuer,' against
Fraud, &c. ^^^ ^^j^ Walter Michael Oppenheim, setting forth that the said Robert
Russell, pursuer, had, on the 11th day of November 1847, lent the
sum of £50 sterling to the said Walter Michael Oppenheim, defender,
and that the said sum was wholly owing, and concluding for payment
of tiie same with expenses, or having some similar narrative, allega-
tions, and conclusions, and containing a warrant or precept of arrest-
ment in common form, the said summons being, in its narrative, alle-
gations, and conclusions, and you the said George Kippen well knowing
it to be, entirely false, fraudulent, and fictitious, and intended for the
purpose of fraudulently obstructing or defeating execution of the said
decree obtained against you by the said Walter Michael Oppenheim as
aforesaid ; and you the said George Kippen did, on the said 7th day
of July 1848, or on a day, after and about that time, to the prosecutor
unknown, in or near the office or premises situated in or near Bruns-
wick Place, in or near Glasgow, then and now or lately occupied by
. Robert Chalmers, an agent there, or elsewhere in or near Glasgow to
the prosecutor unknown, in virtue or on pretence of the said warrant
or precept of arrestment contained in said false and fraudulent. sum-
mons last above libelled, wickedly, fraudulently, and feloniously, cause
or procure to be served upon you by William Smith, now or lately
sheriff-officer in Glasgow, and now or lately residing in Bell Street of
Glasgow, an arrestment in name of said Robert Russell, fencing and
arresting all goods, debts, or effects in your hands, belonging to the
said Walter Michael Oppenheim ; and all this you the said George
Kippen did, in pursuance of the wicked and felonious purpose, formed
by you as aforesaid, of obstructing or defeating execution of the said
decree against you, obtained by the said Walter Michael Oppenheim,
as before libelled, and to the lesion, injury, and oppression of the said
Walter Michael Oppenheim ; And you the said George Kippen, in
further pursuance of the wicked and felonious purpose last above libel-
led, did, on the 7th day of July 1848, or on one or other of the days
of that month, or of June immediately preceding, or of August imme-
diately following, in or near said house or office in or near Fife Place
aforesaid, then and now or lately occupied by you the said George
Kippen, or in or near said sheriff-clerk's office of Glasgow, or elsewhere
in or near Glasgow to the prosecutor unknown, falsely, fraudulently,
and feloniously, devise and raise, or cause or procure to be raised, be-
fore the Sheriff Small-Debt Court of Glasgow, a summons or complaint
in name of Robert Burnside, or Robert Allan Burnside, then and now
or lately spirit-dealer in or near Howard Street of Glasgow, and now
AND CIRCUIT COURTS OF JUSTICIARY. 281
or lately residing in or near Jamaica Street of Glasgow, or of some No. 46.
wholly fictitious person, designed in the said summons or complaint as ^po'g^
' Robert Burnside, spirit-dealer, Howard Street, Glasgow,' against the
said "Walter Michael Oppenheim, setting forth that the said defender '§oy°g' '
was owing to the complainer the sum of £3 : 7 : 9 sterling, per account, .' 849.
and concluding for payment of the said sum with expenses, or with Falsehood,
some similar narrative, allegations, and conclusions, and containing a Fraud, &c.
warrant or precept of arrestment in common form, the said summons
or complaint, in its narrative, allegations, and conclusions, being, and
you the said George Kippen well knowing it to be, entirely false, frau-
dulent, and fictitious, and intended for the purpose of fraudulently ob-
structing or defeating execution of the said decree obtained against you
by the said Walter Michael Oppenheim as aforesaid ; and you the
said George Kippen did, on said 7th day of July 1848, or on a day,
after and about that time, to the prosecutor unknown, in or near the
said office or premises situated in or near Brunswick Place aforesaid,
then and now or lately occupied by the said Robert Chalmers, or else-
where in or near Glasgow to the prosecutor unknown, in virtue or on
pretence of the said warrant or precept of arrestment contained in the
said false and fraudulent summons or complaint last above libelled,
wickedly, fraudulently, and feloniously, cause or procure to be served
upon you, by the said William Smith, an arrestment, in name of said
Robert Burnside, or Robert Allan Burnside, fencing and arresting, or
pretending to fence and arrest, in your hands, all goods, efiects, debts,
and sums of money belonging to the said Walter Michael Oppenheim,
and that to an amount not exceeding £8:6:8; and all this you the
said George Kippen did, in farther pursuance of the wicked and felo-
nious purpose, formed by you as aforesaid, of obstructing or defeating
the execution of the said decree obtained against you by the said
Walter Michael Oppenheim, and to the lesion, injury, and oppression,
of the said Walter Michael Oppenheim ; and in further prosecution of
your said wicked and felonious purpese of obstructing or defeating the
execution of the said decree obtained against you by the said Walter
Michael Oppenheim, you the said George Kippen did, on thp 14th day
of July 1848, or on one or other of the days of that month, or of June
immediately preceding, or of August immediately following, in or near
said house or office in or near Fife Place aforesaid, or in or near said
sheriff-clerk's office, or elsewhere in or near Glasgow to the prosecutor
unknown, falsely, fraudulently, and feloniously, raise, or cause or pro-
cure to be raised, before the ordinary Sheriff-Court at Glasgow, a sum-
mons of multiplepoinding at your instance, against the said Walter
Michael Oppenheim, Robert Russell, and Robert Burnside or Robert
Allan Burnside, setting forth that you were indebted to the said Walter
Michael Oppenheim in a sum of money, the amount of which would
be condescended on in the process to follow on said summons, and that
you were not in safety to pay the same, in respect of the said arrest-
282 CASES BEFORE THE HIGH COURT
No. 46. ments, or pretended arrestments, served, or pretended to be served, on
George ^^ ^^^ names of the said Robert Russell and Robert Bumside or
Kippen. J ' r . 1 1 1 J- ii i
Robert Allah Burnside respectively, as aforesaid, and concluding that
^ n'Jiv.T*' you tlie said George Kippen should be held liable in once and single
1849 payment only, and under deduction of the expenses of the said process
Falsehood, of niultiplepoinding ; and this also you did to the lesion, injury, and
Fraud, &c. oppression of the said Walter Michael Oppenheim : Likbas (4.),
Alexander Dick junior, writer in Glasgow, and now or lately residing
in or near Brunswick Street, in or near Glasgow, having, on the Slst
day of June 1848, or about" that time, obtained decree at his instance
before the ordinary Sheriff-Court at Glasgow, against you the said
George Kippen, for the sum of £11 : 6 : 10, together with the sum of
£l : 16 : 3 of expenses, and 5s. as the dues of extract, and said decree
having been extracted, and a charge of payment having been given
thereon to you the said George Kippen, on the 4th day of July 1848,
or about that time, you the said -George Kippen having formed the
wicked and felonious purpose of obstructing or defeating execution of
the said decree, did, on the 17th day of July 1848, or on one or other
of the days of that month, or of June immediately preceding, or of
August immediately following, in or near the house or office at or near
Fife Place aforesaid, then and now or lately occupied by you the said
George Kippen, or in or near the said sheriff-clerk's office of Glasgow,
or at some other place in or near Glasgow to the prosecutor unknown,
falsely, fraudulently, and feloniously, devise and raise, or cause or pro-
cure to be raised, before the Sheriff Small-Debt Court of Glasgow, a
summons or complaint in name of William Colquhoun, carter, now or
lately residing in or near Hunter Street, in or near Glasgow, or of
some wholly fictitious person, designed in the said summons or com-
plaint as ' William Colquhoun, carter 1 Graham Street Gallowgate
' Glasgow,' against the said Alexander Dick junior, setting forth that
the said Alexander Dick junior was owing to the said William Col-
quhoun the sum of £5 sterling, per account, the said sum of £5 being
stated in the account referred to in the said summons or complaint, as
cash lent by the said William Colquhoun to the said Alexander Dick
junior, and concluding for payment of the same with expenses, or hav-
ing some similar narrative, allegations, and conclusions, and containing
a precept of arrestment in common form, the said summons or com-
plaint being, in the narrative, allegations, and conclusions thereof, and
you the said George Kippen well knowing it to be, entirely false, frau-
dulent, and fictitious, and intended for the purpose of fraudulently ob-
structing or defeating execution of the said decree obtained against
you by the said Alexander Dick junior as aforesaid ; and you the said
George Kippen did, on the said 17th day of July 1848, or on a day,
after and about that time, to the prosecutor unknown, on or near
Queen Street or Exchange Square of Glasgow, opposite or near to the
Exchange of Glasgow, or elsewhere in or near Glasgow to the prose-
AND CIRCUIT COURTS OF JUSTICIARY. 283
cutor unknown, in virtue or on pretence of the said warrant or precept No. 46.
of arrestment contained in the said false and fraudulent summons last ^?ppf°_
above libelled, cause or procure, to be served on you by James Christi- — -— — :
, , . ,. • T. • 1 T.1 HighCourt.
son,, sheriff -ofiBcer, now or lately residmg in or near Brunswick rlace, jj^y^ g.
in or near Glasgow, an arrestment, in name of said William Colquhoun, ^849.
fencing and arresting, or pretending to fence and arrest, all sums of Falsehood,
money, goods, and effects, in your hands, belonging to the said Alex- Fraud, &o.
ander Dick junior, and that to an extent not exceeding £8:6:8; and
all this you the said George Kippen did in pursuance of the wicked
and felonious purpose,, formed by you as aforesaid, of obstructing or
defeating execution of the said decree obtaineiTby the said Alexander
Dick junior against you, and to the lesion, injury, and oppression, of
the said Alexander Dick junior ; and in farther prosecution of the said
wicked and felonious purpose, last above libelled, you the said George
Kippen did, on the 18th day of July 1848, or about that time, in or
near the said house or office in or near Fife Place aforesaid, or in or
near the said sheriff-clerk's office, or elsewhere in or near Gla^ow to
the prosecutor unknown, wickedly, fraudulently, and feloniously, raise,
or cause to be raised, before the ordinary Sheriff-Court of Glasgow, a
summons of multiplepoinding at your instance, against the said Alex-
ander Dick junior and the said William Colquhoun, and another per-
son therein designed ' David Thomas carter and cowfeeder in Trades-
' ton of Glasgow,' setting forth the said decree at the instance of the
said Alexander Dick jiinior, and said charge thereon, and that you
were not in safety to make pajmient of the sums contained in said de-
cree, in respect of an arrestment at the instance of the said David
Thomas, designed as aforesaid, and of the said arrestment in name of
the said William Colquhoun, and concluding that you the said George
Kippen should be found liable in once and single payment only, and
under the deduction of the expenses incurred by you in the process to
follow thereon, which summons of multiplepoinding, last above libelled,
in so far it is founded on the said arrestment, at the instance of the
said William Colquhoun, was a fraudulent and felonious proceeding on
the part of you the said George Kippen, and was to the lesion, injury,
and oppression, of the said Alexander Dick junior : And, you the said
George Kippen, during the whole course of your said false and fraudu-
lent proceedings above libelled, were a practitioner of the law, and a
procurator of the Sheriff-Court of Lanarkshire, at Glasgow, and pos-
sessed thereby facilities, and did avail yourself of the same, for devis-
ing and carrying on the said frauds.
Logan objected to the relevancy of the libel. The
major charged falsehood and fraud, aggravated as de-
scribed. The word especially applied to the aggravations.
That was clear from the Subsumptions of the libel ; and
284 CASES BEFORE THE HIGH COURT
No. 46. the objection was, that the charges in the minor did not
Kippen. answer to the principal crime alleged, but only to the
High Court- aggravations.
\°U9.' In the first charge, it was set forth, that ' you the said
Falsehood, ' Gcorgo Kippeu having formed the wicked and felonious
rau , c. , purpose of obstructing or defeating execution of the said
* warrant, did,' &c. It was not charged that this was frau-
dulently done ; nothing more followed than a mere detail
of the modus operandi in which the pannel was said to
have carried out his plan, which was not distinctly aver-
red to have been either false or fraudulent. No doubt
the minor answered to the alleged aggravation, but the
objection was, it did not come up to the principal
crime. At any rate, it amounted to falsehood only,
and not to fraud. Falsehood per se was not a crime. In
all cases fraud had been joined, and this shewed that
the falsehood was no crime, unless it had taken effect.
{Gibh's case. Bell's Notes, p. 64.) This was rendered
still more apparent from the case of M^Intyre (Inverness,
Sept. 14. 1837, Swinton, vol. i., p. 536), where it was
held, that where imposition was charged in the major, it
must be alleged in the minor that it took effect. Case
of Christie (High Court, March 12. 1841, Swinton,
vol. ii, p. 534.) The objection there went to the undue
latitude taken by the prosecutor, but the principle of the
case was the same as that of M'Intyre, and was more-
over a precedent as to the form of libel necessary in a
case of the kind. So also in the case of Miller (Jed-
burgh, Sept. 1847, Arkley, p. 355), where falsehood,
fraud, and wilful imposition were charged, it was alleged
that the imposition was effectual. The minor in this
case did not allege any completed fraud, and consequently
did not answer to the principal charge in the major, how-
ever it might correspond to the aggravations set forth,
Avhich could not be regarded unless the principal charge
was relevantly, laid.
LoED MoNCREiFP. — The authorities do not come up
to the point pressed upon us. The objection resolves it-
AND CIRCUIT COURTS OP JUSTICIARY. 285
iself into this, that the attempted fraud was not success- No. 46.
George
ful. In judging of the relevancy, however, we must Kippen.
attend to the special circumstances of each case, and High Court.
examine the precedents in the same way. Now, here all ms.'
the overt acts set forth are said to have been committed Falsehood,
with a criminal intent, and for an unlawful design. This, ^^^^^' *"'•
in my opinion, is enough. No doubt, in the Jedburgh
case, it was alleged that the fraud was effectual, but then
the facts warranted the insertion of that allegation. But
that case did not decide that it must in all cases be
charged that success followed the criminal attempt, in
order to render the party amenable to the law. I do not
think it necessary ; and, indeed, in the case of M'lntyre
we have quite sufficient to warrant us in so holding.
Lord Cockbuen. — I concur in what has fallen from
Lord Moncreiff, and think this objection must be re-
pelled. I may add, however, that in this case there is
enough set forth to meet the argument of the prisoner's
counsel, even supposing it in all respects sound. It is
alleged that he formed a fraudulent purpose of obstruct-
ing or defeating diligence, at the instance of various par-
ties, and the modes by which he proceeded to carry his
intention into effect are set forth. It is also said that the
arrestment took effect, and thereby the obstruction, which
was his object, was completed, which is said to have been
to the lesion, injury, and oppression of the parties. I am
of opinion, on this ground, as well as on those stated by
Lord Moncreiff, that this objection must be repelled.
The LoED Justice-Cleek. — The objection only amounts
to this, that in all cases of fraud it is necessary to allege
that the attempt was successful. For the reasons given
by Lord Moncreiff, I do not concur in that view. It is
said that the minor answers only to the aggravations, but
this proceeds on a mistake of the meaning of the word
' especially,' as used in the major. Formerly the word
' particularly' would have been used. But though
• especially' is now the word employed, yet that does not
change the meaning of the libel. Practically, its mean-
286 CASES BEFORE THE HIGH COURT
No. 46. ingf is to set forth and define the particular mode in
George ° i i • •
Kippen. which the crime was committed, the law taking cogniz-
HighCum-t. ance that particular modes constitute substantive aggra-
Nov, 6.
1849." rations. Here, however, I think the fraud alleged is
Falsehood, shewn to havc been completed. The object was not to
*" ' "■ cheat any person, but to delay payment of a debt which
was due from him, by means of an unlawful device.
Everything necessary to this object is said to have been
done by him fraudulently and feloniously ; and as delay
was the object he wished, so it is said that delay was ob-
tained, as is alleged, to the injury and lesion of the cre-
ditors. In these circumstances, the objection must be
repelled.
Thei'eafter the pannel pleaded guilty to the third
charge, except in so far as related to the person of the
name of Burnside, and to the fourth charge, as libelled.
LoQAN" addressed the Court in mitigation of punish-
ment, and asked their Lordships to impose a fine, either
as the whole or part of the sentence.
The Lord Justice-Clerk. — In such a case as this, it
is altogether out of question to think of a fine ; and it is
of great importance that the public should know, that in
all such cases the Court will imprison or transport, and
not impose a fine. I remember that in the Glasgow
case, when we imposed a fine, which we were assured,
would be paid, the pannel got himself declared bankrupt
the day after.
In respect of the judicial confession above set forth,
the said George Kippen was sentenced to nine months'
imprisonment.
AND CIRCUIT COURTS OF JUSTICIARY. 287
WINTER CIRCUIT.
GLASGOW. ^]%l}-
Jvdges — Lokds Cockburn and Ivory.
Her Majesty's Advocate — Young A.D.
AGAINST
John Stevens — W. H. Thomson — A. B. Clark.
Murder. — Held, that it was not a good plea in bar of trial, that the
pannel had been tried and convicted of a simple assault in the Police
Court, for striking the same blows in respect of which he was
charged with murder.
John Stevens was charged with Murder : No. 47.
John
Stevens.
In so FAB AS, on the 17th day of November 1849, or on one or other -
of the days of that month, or of October immediately preceding, or of ja^^ii['
December immediately following, in or near the bouse in or near Bishop 1850.
Street of Anderston, in or near Glasgow, then and now or lately occu- Murder,
pied by Alexander Bobison, a bottle-blower or labourer, then and now
or lately residing there, in which house you the said John Stevens and
the since deceased Alice M'Donald or Stevens your wife, or with whom
you cohabited, then lodged or resided, you the said John Stevens did,
wickedly and feloniously, attack and assault the said Alice M'Douald
or Stevens, and did, with a poker or some other weapon to the prose-
cutor unknown, strike her one or more severe blows on or near the
head, whereby she was knocked down, and was mortally injured, and
died on the 30th day of November 1849, or about that time ; and was
thus murdered by you the said John Stevens.
On the diet being called it was objected in bar of trial,
that the pannel had been tried and sentenced in the Po-
lice Court, in respect of striking the very blows which
were said to have occasioned death in the present charge.
That constituted a res judicata, and if the public autho-
rities had been too precipitate in trying as a police oifence
what was ultimately found to be of a more serious cha-
racter, they must abide the consequence, and not the
prisoner, who had no control over their proceedings.
No. 47.
John
Stevens,
Glasgow.
Jan. 11.
18S0.
288
CASES BEFORE THE HIGH COURT
Young A. D. — The objection stated could not be sus-
tained after the judgment in the case of Cobb, High Court,
Nov. 21. 1836, Swinton, vol. i., p. 354.
Lord Cockbuen repelled the objection on the autho-
Murder. Tity of the case of Cobb.
The pannel thereafter pleaded Guilty of Culpable Ho-
micide.
In respect of which judicial confession, he was senten-
ced to be transported for life.
Jan. 3.
1850.
HIGH COURT.
Present,
The Lord Justice-Clerk,
Lords Mackenzie and Moncreiff,
Her Majesty's Advocate — £>eas A.D. — G. Young A.D.
Archibald Miller and Susan Brown or Miller — Logan — Shand.
Trial, bar of. — Opinion intimated, that it was not a good objection
in bar of trial, that the Procurator -fiscal had obtained information
from the pannel under a pledge that she should not be tried.
Outlawry. — Held, that an outlawry was recalled dejure by the Pub-
lic Prosecutor arraigning the pannel at the bar.
No. 48. Archibald Miller, a flesher, and Susan Brown or
■*^susan°'^ Miller, were charged with Using and Uttering, as
'^''^^''- genuine. Forged or Counterfeit Bank Notes ; as also
^'|^^<^°^'''- Theft, also Reset of Theft, and contravention of the Sta-
1850.' tute 45th Geo. III. c. 89 :
Forgery,
&c.
In so far as (1.), on the 5th day of March 1849, or on one or other
of the days of that month, or of February immediately preceding, or of
AND CIRCUIT COURTS OP JUSTICIARY. 289
April immediately following, within or near the dwelling-house, shop, No. 48.
or premises situated in or near Canongate, in or near Edinburgh, then gujan
or lately before occupied by you the said Archibald Miller aud Susan Miller.
Brown or Miller, or by one or other of you, and within or near the HighCourt.
dwelling-house, shop, or premises situated in or near High Street, in Jan. 3.
or near Edinburgh, then occupied by James Mackay, then a grocer and ! —
spirit-dealer there, and now or lately a prisoner in the prison of Edin- ^°^^^t
burgh, or within or near one or other of the said dwelling-house, shop,
or premises situated in or near Canongate aforesaid, and the said
dwelling-house, shop, or premises situated in or near High Street afore-
said, or at some other place or places in or near Edinburgh to the pro-
secutor unknown, you the said Archibald Miller and Susan Brown or
Miller, or one or other of you, knowingly or wittingly, had in your
possession or custody, or in your dwelling-house, outhouse, lodgings,
or apartments, situated in or near Canongate aforesaid, six, or thereby,
forged or counterfeited Bank of England notes for £I0 each, and each
bearing to be dated ' London 4 Oct 1848,' and to be subscribed ' For
' the Gov'' and Comp» of the Bank of England. J. Cann,' or one
or more of them, knowing the same to be forged or counterfeited, with-
out lawful excuse : Likbas (2.), time above libelled, within or near
the shop or premises situated in or near Leith Street, in or near Edin-
burgh, then and now or lately occupied by William Eutherford, then
and now or lately spirit-merchant there, and within or near the said
dwelling-house, shop, or premises situated in or near Canongate afore-
said, then or lately before occupied by you the said Archibald Miller
and the said Susan Brown or Miller, or by one or other of you, and with-
in or near the office or premises situated in or near Parliament Square,
in or near Edinburgh, then aud now or lately occupied by the Union
Bank of Scotland, or by the Banking Company carrying on business
under that or some similar denomination, or within one or more of
them, or at some other place or places in or near Edinburgh to the pro-
secutor unknown, you the said Archibald Miller, knowingly or wit-
tingly, had in your possession or custody, or in your dwelling-house,
outhouse, lodgings, or apartments, situated in or near Canongate afore-
said, two, or thereby, forged or counterfeited Bank of England notes
for £10 each, and each bearing to be dated ' London 4 Ocf 1848,' and
to be subscribed ' For the Gov' and Comp* of the Bank of England.
' J. Carin,' and bearing to be numbered respectively ' f^ 46506,' and
' -r^ 56045,' or one or more of them, knowing the same to be forged
or counterfeited, without lawful excuse : Likeas (3.), time above libel-
led, within or near the said shop or premises situated in or near Leith
Street aforesaid, then and now or lately occupied by the said William
Rutherford, and within or near the said dwelling-house, shop, or pre-
mises, situated in or near Canongate aforesaid, then or lately before
290 CASES BEFORE THE HIGH COURT
No. 48. occupied by you the said Archibald Miller and the said Susau Brown
&isan° or Miller, or by one or other of you, and within or near the office or
Miller, premises sijiuated in or near George Street, in or near Edinburgh, then
High Court, and now or lately occupied by the Commercial Bank of Scotland, or
Jan. 3. ijy tjig banking company carrying on business under that or some simi-
! lar denomination, or within or near one or more of them, or at some
■Forgery, ^^-^er place or places iu or near Edinburgh to the prosecutor unknown,
you the said Archibald Miller, knowingly or wittingly, had in your
possession or custody, or in your dwelliflg-house, outhouse, lodgings, or
apartments, situated in or near Oanongate aforesaid, two, or thereby,
forged or counterfeited Bank of England notes for £lO each, and each
bearing to be dated ' Loudon 4 Ocf 184S,' and to be subscribed ' For
' the Gov and Comp* of the Bank of England. J. Cann,' and to be
numbered ' j^ 54064,' or one or more of them, knowing the same to be
forged or counterfeited, without lawful excuse : Likeas (4), time above
libelled, within or near the office or premises situated in or near Par-
liament Square aforesaid, then and now or lately occupied by the Union
Bank of Scotland, or by the banking company carrying on business
under that or some similar denomination, you the said Archibald Miller
did, wickedly and feloniously, use and utter, as genuine, two forged or
counterfeited Bank of England notes for £] 0 each, and each bearing
to be dated ' London 4 Oct' 1848,' and to be subscribed ' For the
' Gov' and Comp* of the Bank of England. J. Cann,' and bearing to
numbered respectively ' -rr 46506,' and ' -j-, 56045,' you knowing the
same to be forged or counterfeited, by then and there delivering the
same, or causing the same to be delivered, to Robert Robertson Mur-
ray, then and now or lately a teller in the employment of the said
Union Bank of Scotland, or banking company carrying on business
under that or some similar denomination as aforesaid, and then and now
or lately residing with Mrs Ann Gray or Murray, in or near Lauris-
ton Place, in or near Edinburgh, or to some other person or persons to
the prosecutor unknown, in the employment of the said last-mentioned
bank or banking company, in order to be changed, you then and there
received in exchange for the same twenty pounds sterling, or thereby,
in notes of the said last -mentioned bank or banking company, or in
other genuine money : Likbas (5.), time above libelled, within or near
the office or premises situated in or near George Street aforesaid, then
and now or lately occupied by the Commercial Bank of Scotland, or
by the banking company carrying on business under that or some simi-
lar denomination, you the said Archibald Miller did, wickedly and
feloniously, use and utter, as genuine, two forged or counterfeited Bank
of England notes for £10 each, and each bearing to be dated ' London
' 4 Oct' 1848,' and to be subscribed ' For the Gov' and Comp» of the
' Bank of England. J. Cann,' and to be numbered ' -jj- 54064,' you
AND CIRCUIT COURTS OF JUSTICIARY. 291
Itnowitig the same to be forged or counterfeited, by then and there de- ^^"^^^^^
livering or presenting the same, or causing the same to be delivered or Susan
presented, to William Leckie, then and now or lately a teller or cashier 'Mmev..
in the employment of the said Commercial Bank of Scotland, or bank- High Court,
ing company carrying on business under that or some similar denorai- ^^50/
nation as aforesaid, and then or now and lately residing in or near —
Picardy Place, in or near Edinburgh, in order to be changed, and you °&eT^'
proposing to receive in exchange therefor twenty pounds sterling, or
thereby, in the notes of the last-mentioned bank or banking company,
or other genuine money: Likeas (6.), on the night of the 11th, or
morning of the 12th, day of September 1849, or on one or other of the
days of that month, or of August immediately preceding, or of October
immediately following, within or near the house situated iu or near
Blackfriars' "Wynd, in or near Edinburgh, then occupied by some per-
son or persons to the prosecutor unknown, and now or lately occupied
by Walter Sawers or Sayers, now or lately residing there, or at some
other place in or near Edinburgh, to the prosecutor unknown, you
the said Archibald Miller by yourself, or aided and abetted by two or
more females, or other persons to the prosecutor unknown, did, wick-
edly and feloniously, steal and theftuously away take, from or from
near the pocket or person of the Reverend William Anderson, then
and now or lately minister of the United Presbyterian Church at or
near Blalrlogie, in the parish of Logie, and county of Perth, and then
and now or lately residing there, a gold watch, the property, or in the
lawful possession, of the said Reverend William Anderson : Or other-
wise, the said watch having been, time and place above libelled, wick-
edly and feloniously, stolen by some person or persons to the prosecu-
tor unknown, you the said Archibald Miller did, time last above libel-
led, within or near the house situated in or near Paul Street aforesaid,
now or lately occupied byyou the said Archibald Miller, or at some other
time and place in or near Edinburgh, or elsewhere in or near the county
of Edinburgh, to the prosecutor unknown, wickedly and feloniously,
reset and receive the said stolen watch, you well knowing the same to
have been stolen.
Shand, on behalf of the female prisoner, objected in
bar of trial, that a pledge had been given to her by the
Procurator-fiscal, that, in reward for her giving informa-
tion, she should not be tried herself, and offered to prove
the fact by the examination of the fiscal.
Robert Dymock examined, deponed, I know the female prisoner.
She was examined as to the case of Mackay, which related to the
passing of the said bank-notes, which is the foundation of this charge.
She was asked if she would speak out in that case. She came back
292 CASES BEFORE THE HIGH COURT
A^ch.*and again ou the 10th of April, and said she could give no information.
Susan No declaration was taken from her as a witness.
Miller.
"'&"."*■ The LoED Justice-Cleek.— In having allowed this
^8^»- examination, we wish it to be understood, that we by no
Fo^ery, means intend to countenance the notion that the Pro-
curator-fiscal can, without authority, tie up the hands of
the Public Prosecutor. It is not the policy of the law to
give such a power to any inferior officer, and the parties
giving information to the Procurator-fiscal, must take
their risk as to any pledge he may be so ill-advised as, to
give.
After the examination of the first witness was closed,
the Public Prosecutor stated, that the outlawry formerly
pronounced against the pannel, Archibald Miller, remain-
ed unrecalled, and thereupon asked his counsel if he
moved to have the outlawry recalled.
Logan declined to make any motion to that effect.
Deas thereupon moved that the outlawry should be
recalled, and mentioned the case of Wilson, Glasgow,
7th April 1830 ; Bell's Notes, p. 228.
The Lord Justice-Clerk. — I am by no means satis-
fied with the decision in that case, and think we ought
to pronounce a special interolcutor here. The pannel
having known the objection all along, ought to have
stated it at the commencement of the trial, and cannot
take advantage of an objection now, which, if good at
all, would be in bar of trial, and I propose therefore
that we should pronounce a special interlocutor holding
the outlawry recalled de jure, by the public prosecutor
having put him at the bar, and allowed him to plead.
The other Judges concurred, and the following inter-
locutor was pronounced : —
' The Court held, that the sentence of outlawry refer-
' red to was dejure recalled, in consequence of the Public
' Prosecutor having allowed the pannel to plead to the
' indictment, and proceed with the trial, and found it re-
• called accordingly.'
AND CIRCUIT COURTS OF JUSTICIARY. 293
The case having proceeded, the Jury found the charge ^reh. and
against the female pannel not proven, and unanimously ^usan
found Archibald Miller guilty of the 3d and 5th charges High Court
as libelled. fgso.'
1 -J A X.' Forgery,
In respect of which verdict of assize, the said Arctii- &c.
bald Miller was sentenced to be transported for fourteen
years, and the said Susin Brown or Miller was assoilzied
simpliciter, and dismissed from the bar.
Present,
Lord Justice-Clerk, ^ .
Jan, 4.
1850.
Lords Moncreifp and Wood.
Her Majesty's Adyooate — Young A.D.
AGAINST
Hannah Mitchell — Boyle — Adam.
Evidence. — Held, distinguishing from the case of Maclure, Arkley,
p. 448, that a witness who had been present at the examination of
another witness, was not disqualified on the ground of partial counsel,
in respect tlat it appears he had not thereby been made acquainted
with any thing of which he was not previously aware.
No. 49.
Hannah Mitchell was charged with Child Murder, Hannah
as also Concealment of Pregnancy : — '" ^ '
° *' High Court.
Jan. 4.
In so far as, upon the 21st day of August 1849, or on one or other 1850.
of the days of that month, or of July immediately preceding, or of jjurder,
September immediately following, in or near the gig-house, situated Se-
near to the Manse of Rescobie, in the parish of Rescobie, and shire of
Forfar, and now or lately occupied by the Reverend David Esdaile, now
or lately minister of the parish of Rescobie foresaid, or at some other
place, to the prosecutor unknown, in or near the said manse of Res-
cobie, you the said Hannah Mitchell having been delivered of a living
male child, did, immediately or shortly after the birth of said child,
and place above libelled, wickedly and feloniously, strike the said child
several blows with your fist, or with some hard substance to the prose-
cutor unknown, or did otherwise bruise the said child, by some means
to the prosecutor unknown, on the head and face, to the severe injury
294 CASES BEFORE THE HIGH COURT
No. 49. of the aairl child, and did, in like manner, bruise or injure the neck of
Mitchell, the said child, and did break one of its lower jaw-bones, and did thrust
High Court. 7°^^ fingers, or some other substance to the prosecutor unknown, within
Jan 4. the mouth or throat of the said child to impede its respiration or stop
1_ its cries, and did thereafter leave the said child naked, and with the
Miwder, umbilical cord untied, in or near the gig-house aforesaid ; by all which,
or part thereof, the said child was immediately or speedily bereaved of
life, and was thus murdered by you the said Hannah Mitchell : Ok
OTHERWISE, time and place above •libelled, you the said Hannah
Mitchell did bring forth a male child ; and you did conceal your being
with child during the whole period of your pregnancy, and did not call
for and make use of help or assistance in the birth, and the said child
was afterwards found dead in or near the said gig-Louse.
During the trial, a witness of the name of Steele was
adduced in behalf of the Crown, who, being examined in
initialibus, deponed :
' I am a surgeon. I know Mrs Ayraouth, a midwife, but I am not
' her medical attendant. She was precognosced as to the facts dis-
' covered by her at the time the child was born in bed. This was on
' this day week. I was present at the time when she was examined
' by the Procurator-fiscal, and attended at his request. I heard the
' whole of her precognition. There was at that time apprehension of
' her being in danger. I was not present at a previous examination.
' She spoke to finding the after-birth and body in the gig-house, and
' their appearances. Can't say if she said that she examined the pri-
' soner. I think she advised her to go to bed. She said she found
' the child unwashed. I suggested no questions, and got no informa-
' tion at that time which I had not previously.'
Boyle requested to see the deposition of Mrs Aymouth,
which was allowed. He then objected that the witness
was incompetent, on the ground of partial counsel, and
submitted that the case was entirely governed by that of
Maclure, High Court, March 15. 1848 ; Arkley, p. 448.
The LoED Justice-Clerk. — I think this case differs
from that of Maclure in this respect, that it appears, as
well from the deposition of the witness that he did not
learn anything from the midwife on that occasion, of which
he was not previously aware, as also from the precogni-
tion then taken, that there was nothing spoken to more
than what was necessary for him to have known, in ordeF
AND CIRCUIT COURTS OF JUSTICIARY. 295
to give a medical opinion. Now, in the case of €uhitt, No^^9|^
what was put before him was the state of the bridge, Mitchell.
and its relative strength to bear the velocity of the en- HighCourt.
gine. He was therefore placed in the position of a jury- i85o.
man, and had the whole facts before him. The rule that Mulder,
excludes witnesses on the ground of partial counsel is
not a statutory one, which we are bound to enforce in all
cases ; and although there is no doubt this was a very
incautious proceeding, there was nothing ultroneous on
the part of the witness, as he went by order ; and as we
find that all he then heard was known to him before the
time he made his medical report, to which he is called
to speak, he could not have been biassed by what occur-
red on the occasion referred to, which was long thereafter.
Lord Moncreiff and Lord Wood concurred.
The case proceeded, and the jury found the pannel
guilty of concealment of pregnancy.
In respect of which verdict of assize, the Court sen-
tenced her to six months' imprisonment.
Present,
The Lord Justice-Clerk, I860.
Lords Moncreiff, Cockburn, and Wood.
Her Majesty's Advocate — Deas A.D. — Young A.D.
AGAINST
John Cameron — Dean of Faculty (M''Neill) — Neaves.
Criminal Letters — Double op List op Witnesses. — Held, lat,
That it was a fatal objection to criminal letters that the list of wit-
nesssea aj%>ended to the copy served, did not bear to be signed by
the Advocate-depute. 2nd, That, after a pannel had been declared
exempt from trial, on the above objection, he could not competently
be detained until fresh criminal letters could be served.
John Cameron was charged on criminal letters with no. so.
Murder :
John
Cameron.
In so PAR AS, on the night of the lUh, or morning of the 12th, day HighCoiu-t.
of August 1849, or on one or other of the days of that month, or of ^^^^'
Murder.
296 CASES BEFORE THE HIGH COURT
No. oO. July immediately preceding, or of September immediately following,
„ ''°^"' in or near Little Dovehill Street, in or near Glasgow, the said John
Cameron. • r- . ' _ ,. ij, » *
— Cameron did, wickedly and feloniously, attack and assault leter
"j^^^gil"'" M'Gill, since deceased, then or lately before a boot-closer, and then or
18S0. lately before residing in or near Little Dovehill Street aforesaid, with
Murder, his father, Thomas M'Gill,. a shoemaker, then and now or lately re-
siding there, and did, with a stick or some other weapon to the prose-
cutor unknown, strike him one or more severe blows on or about the
head or other part or parts of his person, whereby he was knocked
down, and did kick him when down, and did otherwise maltreat and
abuse him ; by all which, or part thereof, the said Peter M'Gill was
mortally injured, and in consequence died on or about the 16th day of
August 1849, and was thus murdered by you the said John Cameron.
Neaves objected in bar of trial, on the ground that there
was a discrepancy between the record and the copy served
on the pannel. The list of witnesses did not bear to be
signed by the pubUc prosecutor, whilst the principal
copy was so signed. It had been the immemorial prac-
tice to authenticate the list of witnesses and assize as
part of the record ; and by the act of adjournal 9th July
1821,^ it was required that full doubles must be served
^ ' That all parties accused shall be served with full doubles of their
' indictment on criminal letters to the will, of the list of witnesses'
' names and designations to be adduced against them, and of the list
' of the assizers' names and designations who are to pass upon their
' assize, with a short copy of charge subjoined thereto : That the afore-
' said full doubles and copies of charge shall be subscribed by the officer
' executing the same on each page, and the execution returned by him
' shall bear that they were so subscribed, and declare that it shall be
' no objection to such doubles that they are written bookways : And
' the said Lords do further declare, that all objections founded upon
' the alleged omission in the said doubles of any part of the record, or
' upon any discrepancy between the said doubles and the record, must
' be proposed before the Jury is sworn to try the case, with certifica-
' tion that no such objection shall thereafter be entertained : And
' further, the said Lords direct and appoint that the Sheriff and
' Sheriff-clerks of the several counties respectively, shall take special
' care that the doubles of all criminal libels, lists of witnesses, and lists
' of assizers to be served on parties accused, be accurately compared
' with the record in all respects, and written out in a clear and legible
' hand, before delivery to the officer for execution ; and shall further
' direct the said officer to subscribe each page of the said doubles, and
' to certify the same in the return of the execution of citation, in terms
' of this act ; for the exact performance of which duty, the Sheriff and
Sheriff-clorks are by law responsible.'
AND CIRCUIT COURTS OF JUSTICIARY. 297
on the pannels. The same objection had been sustained No.jS^o.
in former cases ; Hume, vol. ii., p. 247, and cases there camei-on.
cited: also p. 251, and cases there cited. It was the iiighComt.
latter case that led to the passing of the 9th Geo. IV., ]85o.
ch. 22, the 15th section of which act now regulated the Murdei-.
assize, but no alteration was thereby made in reference
to the service copy. Hume, who published the last edi-
tion of his book after the passing of that act, and Alison,
p. 320, both state that the list of witnesses served on the
pannel must bear that the original was signed by the
public prosecutor, and that it contains a correct copy of
his signature.
Young stated that the authorities quoted were all
prior to the 9th Geo. IV., and that, except the case of
Sutherlnnd, they were all cases in the Circuit Court ; and
that there were no means of knowing on what ground
the judgments were founded.
He admitted that the practice existed, but it was
necessary to look into the origin of the practice, because
there was room for drawing a sound distinction between
the case where a practice established a real privilege and
advantage in favour of the pannel, in which case it would
be incompetent to inquire into its origin, and the case
where the practice existed, not with regard to anything
substantial, in which case it could give no right, because
the public had no interest in its maintenance.
That in this case the practice existed with reference
to a matter quite immaterial, and was not founded on
any statute or act of adjournal.
The act 1672, c. 16, was the act by which the pannel
was entitled to a list of witnesses, and of the assize ; but
there was not one word of a copy there. Immediately
after the passing of that act, a number of objections were
stained by pannels, that they had not got proper lists Of
w^nesses, and three years afterwards another act of ad-
journal passed (1675), but in this act nothing was said
of a ' copy' being required. Then the question arose, if
the pannel was entitled to have more than the names of
witnesses. It was held that he was not only entitled to
298 CASES BEFORE THE HIGH COURT
No. SO. tlie names, but also to the designations. This shewed
Cameron, that a double was not what was originally intended, be-
High'com-t. cause the question if it was sufficient to give the names
Jan- 31- , , , . , 1 • rri
1850. only could not in that case have arisen. Ine same was
Murder, the case under the acts of adjournal 1803, 1818. The
act by which a copy was first ordered to be given, was
the act of adjournal 9th JulyJ.S21.
Hume (p. 251), in referring to the case of Highat,
gives as the reason for the objection being sustained in
these cases, that the pannel was entitled to believe that
witnesses were not properly cited. This argument would
not hold now, as by the act 9th Geo. IV., c. 29, ^ 10, it
was enacted that the objection must be before the jury
are sworn.
The pannel had no interest to object to the list of
witnesses not being signed. He had got a list of wit-
nesses, and no one not there could be examined against,
him. If the prosecutor was willing to take the risk of
witnesses attending, he might do so, but what was the
pannel's interest ? No witness could be added to the list
of witnesses in the pannel's possession. The check was
as complete as could be.
Lord Justice-Clerk. — If it is material to list of wit-
nesses that it be signed, is it not necessary to give copy
of this to the pannel ? In last act passed (1848), which
has marked application, there is a provision dispensing
with Judges' signature to the list of assize, but nothing
is dispensed with at all as to list of witnesses.
Young. — It was not essential that everything in the
principal should be given in the copy. Many things mate-
rial in principal need not be given in copy. It was mate-
rial that the foot of each page should be signed, but it was
not the practice to give the process copy of signature
at each page. Nothing was more material than the will
of criminal letters, but it was not necessary to give a copy
of it. The question arose in the case of Charteris (Hume,
p. 245), in which it was hfeld not necessary to give the
pannel a copy of it.
Lord Justice-Clerk. — The will is the diligence, and
AND CIRCUIT COURTS OF JUSTICIARY. 299
used to be separate from the body. It resembled the No-^^s^o.
old precept of a charter. Civmeron.
Young. — The will was a part of the letters. There Highcom-t.
could be no letters without a will. It was held iu that isso. '
case not necessary to give a copy, on the ground that it Murder.
was pure matter of form. This shewed that what was
material in the principal need not necessarily be given
in the copy ; and it could not be material for the pannel's
interest, that he should get the information that the list
of witnesses was signed by the prosecutor.
LoED MoNCREiFF. — I do not see how we can go against
what is admitted to be the practice.
Lord Cockburn. — It is perfectly clear that the pan-
nel is entitled to have served on him a copy of the list
of witnesses with the prosecutor's signature.
Lord Wood. — I think it unnecessary to say anything ;
the practice is quite conclusive.
Lord Justice-Clerk. — I entirely concur. The argu-
ment went only to shew that one of the reasons assigned
for the decisions quoted did not now apply. But there
is another important point in this case. By the second
branch of act of adjournal 1821 , Sheriffs are responsible
for this being done ; and I think that the attention of
the Sheriff of Lanark should be specially called to this
case.
The Court sustained the objection.
Deas moved the -Court, that the pannel might be de-
tained until fresh criminal letters could be served. The
statute 1701 did not prevent the prosecutor from again
serving the same letters, except the will. The will was
not incorporated as part of the letters. It was merely dili-
gence, and might be renewed as a re-service of an indict-
ment. It was an erroneous assumption that there was
no difference between defects of service and of substance.
Here the defect was one in service, rendering the pro-
cess void.
The Lord Justice-Clerk. — Then the worse executed
the better for you.
Deas. — No doubt. The question is one of process ;
300 CASES BEFORE THE HIGH COURT
No. SO. and I contend that there is no process here at which the
Cameron. Court Can look ; and as I propose to serve new letters
High Court, within forty days after the expiry of the letters of inti-
Ts'&o. ' mation, I am entitled to do so, as there was no good
Murder, citation before.
The Lord Justice-Clerk. — The act 1701 was passed
to prevent a long period oC imprisonment before trial,
and our duty is not to consider whether or not it is
stringent in its terms, but to construe it fairly between
the Crown and the subject. The point contended for
on behalf of the Crown is, whether there shall not be
twice forty days within which the pannel may be incar-
cerated on criminal letters. In this case the sixty days
after intimation expired, and then criminal letters were
used against the pannel, which, by the terms of the act,
expressly require the prosecutor to prosecute the same
to a final sentence within forty days, unless the delay be
on the application, or at the desire of the prisoner. To
adopt the construction contended for by the Crown would
be to neutralise all the provisions of the statute ; for if
that argument was correct, it would come to this, that
having served a bad libel, they might on the thirty-ninth
day serve a fresh one, and, by repeating the process,
postpone indefinitely the trial of the party. This would
defeat the purpose of the act, which was to prevent de-
lay, and fix the period within which the trial must be pro-
secuted to a final sentence, which is declared to be forty
days after the prisoner has been incarcerated on the cri-
minal letters. The act did not give any presumption of
innocence, but merely exempted from trial.
The other Judges concurred, Lord Cockburn remark-
ing, that unless that point was fixed, there was nothing
fixed in the law.
The application was refused;
In respect of which, the said John Cameron was de-
clared for ever free from the charge made against him,
and dismissed from the bar.
AND CIRCUIT COURTS OF JUSTICIARY. 301
Present,
The Lord Justice-Glerk, i'eb. 6.
1850.
Lords Moncbeiff, Cockbcrn, Wood, and Ivory.
Her Majesty's Advocate — Young A.D.
AGAINST
Catherine Crossgrove or Bradley — Aytoun.
Indictment — Relevancy — Theft. — Held that it was not theft in a
pawnbroker tojappropriate the articles which had been pledged
with her.
Catherine Crossgrove or Bradley was charged with No. 51.
™, « ^ Catherine
XUfit I Crossgrove
or Bradley.
In so far as, you the said Catherine Crossgrove or Bradley having, Hish Court,
during the period between the 1st day of January 1849 and the 22d laso."
day of October 1849, or part thereof, carried on business in or near "
Hamilton as a pawnbroker ; and various persons residing in or near
Hamilton having, at various times during the said period, deposited,
or caused to be deposited, with you there, sundry articles, their pro-
perty, in pledge or pawn, for advances of money made by you thereon,
and in particular (1.), John M'CuUoch, weaver, now or lately residing
in or near Grammar School Square of Hamilton, and Isabella Hamil -
ton or M'Culloch, his wife, or one or other of them, having, within or
near the house in or near Hamilton, then and now or lately occupied
by you the said Catherine Crossgrove or Bradley, on one or more oc-
casions during the period above libelled, deposited, or caused to be de-
posited, with you, in pledge or pawn, the articles specified in Inven-
tory No. I., hereto annexed, the property, or in the lawful possession,
of them, or one or other of them : And (2.), William Doolan, a pen-
sioner, now or lately residing in or near Grammar School Square
aforesaid, and Jean Hamilton or Doolan, his wife, or one or other of
them, having, place above libelled, on one or more occasions during
the period above libelled, deposited, or caused to be deposited, with
you, in pledge or pawn, the articles specified in Inventory No. II.,
hereto annexed, the property, or in the lawful possession, of them, or
one or other of them : And (3.), John M'Guire, now or lately residing
in or near Grammar School Square aforesaid, and Margaret Neilson
or M'Guire, his wife, or one or other of them, having, place above
libelled, on one or more occasions during the period above libelled, de-
posited, or caused to be deposited, with you, in pledge or pawn, the
articles specified in Inventory No. III., hereto annexed, the propertjr,
Theft.
302 CASES BEFORE THE HIGH COURT
No. i!. or in ihe lawful possession, of them, or one or other of them : And
Catherine ^^■^^ Alexander Cunningham, a chimney-sweep, then and now or lately
or Bradley residing at or near Old Cross, in or near Hamilton, and Jean M'Guire
HiehCom-t ^^ Cunningham, his wife, or one or other of them, having, place above
Feb. 6. libelled, on one or more occasions during the period above libelled,
^^^''' deposited, or cause to be deposited, with you, in pledge or pawn, the.
Theft, articles specified in Inventory No. IV., hereto annexed, the property,
or in the lawful possession, of them, or one or other of them : And
(5.), Agnes M'Donald or Morrison, now or lately residing in or near
Grammar School Square aforesaid, having, place above libelled, on one
or more occasions during the period above libelled, deposited, or caused
to be deposited, with you, in pledge or pawn, the articles specified in
Inventory No. V., hereto annexed, her property, or in her lawful pos-
session : And (6.), Agnes Mountain or Hendry, a widow, now or
lately residing in or near Grammar School Square aforesaid, having,
place above libelled, on one or more occasions during the period above
libelled, deposited, or caused to be deposited, with you, in pledge or
pawn, the articles specified iu Inventory No. VI., hereto annexed, her
property, or in her lawful possession : And (7.), Hugh Burns, now or
lately a dancing-master, and now or lately residing with Peter M'Guir-
lick, in or near Muir Wynd of Hamilton, and Agnes Trevier or Burns,
wife of the said Hugh Burns, or one or other of them, having, place
above libelled, on an occasion during the period above libelled, depo-
sited, or caused to be deposited, with you, in pledge or pawn, the ar-
ticle specified in Inventory No. VII., hereto annexed, the property,
or in the lawful possession, of them, or one or other of them : And
(8.), Janet Henderson, now or lately residing with John M'Kay, a
labourer, in or near Church Street of Hamilton, having, place above
libelled, on one or more occasions during the period above" libelled,
deposited, or caused to be deposited, with you, in pledge or pawn, the
articles specified in Inventory No. VIII,, hereto annexed, her property,
or in her lawful possession : And (9.), Margaret Burns or Burgoyne,
wife of John Burgoyne, an earthenware hawker, now oi^lately resid-
ing in or near New Wynd of Hamilton, and Margaret Burns or Bur-
goyne, his wife, or one or other of them, having, place above libelled,
on one or more occasions during the period above libelled, deposited,
or caused to be deposited, with you, in pledge or pawn, the articles
specified in Inventory No. IX., hereto annexed, the 'property, or in
the lawful possession of them, or one or other of them : And (10.),
Arthur Jack, a labourer, now or lately residing in or near Castle
Wynd of Hamilton, and Jean Jackson or Jack, his wife, or one or
other of them, having, place above libelled, on one or more occasions
during the period above libelled, deposited, or caused to be deposited,
with you, in pledge or pawn, the articles specified in Inventory No. X.,
hereto annexed, the property, or in the lawful possession, of them, or
one or other of them, you the said Catherine Crossgrove or Bradley
AND CIRCUIT COURTS OF JUSTICIARY. 303
did, on the 20th, 21st, or 22d day of October 1849, or on one or other No. SI.
of the days of that month, or of September immediately preceding, or Catherine
of November immediately following, the time not being more particu- or Bradley,
larly known to the prosecutor, within or near the house in or near „. , ^ j
Hamilton, then occupied by you, or at some other place or places in Feb. 6.
or near Hamilton, or elsewhere in the county of Lanark to the prose-
cutor unknown, wickedly and feloniously, steal and theftuously away Theft,
take, the various articles above libelled, specified in the ten inventories
hereto annexed: Likeas (11.), on the 18th day of October 184.9, or
on one or other of the days of that month, or of September immediately
preceding, or of November immediately following, within or near the
shop in or near Church Street of Hamilton, then and now or lately
occupied by James Hamilton, then and now or lately baker and grocer
there, you the said Catherine Crossgrove or Bradley did, wickedly and
feloniously, steal and theftuously away take, a bank or banker's note
for one pound sterling, or twenty shillings sterling, or thereby, in sil-
ver, the property, or in the lawful possession, of the said James Hamil-
ton : Likeas (12.), time last above libelled, in or near the shop or
premises at or near the Port Well of Hamilton, then and now or lately
occupied by Johu Prentice, then and now or lately publican there, you
the said Catherine Crossgrove or Bradley did, wickedly and felonious-
ly, steal and theftuously away take, fifteen shillings sterling, or there-
by, in silver, the property, or in the lawful possession, of the said John
Prentice, or Mary Hare or Prentice, his wife : Likeas (13), on the
20th day of October 1849, or on one or other of the days of that
month, or of September immediately preceding, or of November im-
mediately following, within or near the house in or near Church
Street, in or near Hamilton, then and now or lately occupied by John
Macpherson, bookbinder, then and now or lately residing there, you
the said Catherine Crossgrove or Bradley did, wickedly and feloniously,
steal and theftuously away take, a cloak, the property, or in the law-
ful possession, of the said John Macpherson, or of Elizabeth Rose or
Macpherson, his wife: Likeas (14.), time last above libelled, in or
near the shop or premises in or near New Wynd of Hamilton, then
and now or lately occupied by William Dougherty, then and now or
lately grocer there, you the said Catherine Grossgrove or Bradley did,
wickedly and feloniously, steal and theftuously away take, two shil-
lings and sixpence sterling, or thereby, in silver money, the property,
or in the lawful possession, of the said William Dougherty.
The case was called for trial at the Glasgow Winter,
Circuit.
Aytoun, for the pannel, having objected to the rele-
vancy of the indictment, in so far as the first ten charges
alleged that the crime committed by the pannel was
18S0.
Theft.
304 CASES BEFORE THE HIGH COURT
Oath r'' *^^* '^^ theft, Lord Ivory certified the case, which came
crossgrove ou to be argued of this date.
^ " Aytoun, for the pannel, objected to the first ten arti-
Feb. 6. ' cles, as laid in the indictment. It appeared therefrom,
_ that the property alleged to have been stolen had been
pledged with the prisoner. This was different from cases
where the mere custody was given for the purpose of
work being done thereon for the party by whom it was
delivered. There had been no decision holding it to be
theft to appropriate an article, in which a special pro-
perty had been given by the owner. The authority of
Baron Hume, vol. i., p. 59, was altogether opposed to
the present indictment.
Separately, the Pawnbroker act, 39th and 40th Geo.
III., cap. 19, sec. 24, contained a definition of the offence,
which was that of embezzlement, and that should have
been taken as the appropriate nomen juris by the prose-
cutor in the present instance.
Young, A.D. — There was no doubt as to the meaning
of the indictment. The pure question was, whether the
facts set forth justified the charge or not. No doubt the
authority of Baron Hume was against its being a case of
theft, but the answer to that was, that Baron Hume had
been over-ruled in modern cases, more especially in refe-
rence to his doctrine, that in order to constitute theft, it
was necessary that the first taking should be felonious.
Case of Brown, High Court, July 3, 1839. Swinton,
vol. ii., p. 394. In that case the question as to whether
there was any difference between the bare custody and
right of possession was discussed ; and, as he understood
the case, there was no distinction taken, particularly in the
opinion of Lord Moncreiff, as there reported, who used
the word possession throughout. The right given to the
pawnbroker by the pledge was quite as qualified and
conditional as the watchmaker, who had equally his right
to retain the property for work done.
The Lord Justice-Clerk. — A lien is not a pledge.
Young, A.D. — There was no difference as to this ques-
AND CIRCUIT COURTS OF JUSTICIARY. ,305
tion, which must depend on the right of the party to ^^°-^!-
vindicate the advance he had made, or his demand for re- Croaagrove
pairs done, and in which his right would be equally large. °I_I1 — ^'
£,, - , . , /. . . , , 1 High Court.
The act referred to gave no right or appropriation to the peb. 6.
pawnbroker, but only a right of sale. The question was,
could a pawnbroker steal goods which had been pledged
with him ? If he could, then undoubtedly the present
indictment must be sustained.
LoED MoNCEEiFF. — ^There is no doubt that this case
must turn on somewhat nice distinctions ; and the cases
which have been already decided, as to whether any par-
ticular species facti amount to embezzlement or theft,
are sufficiently puzzling ; but it appears to me that this
case differs from that of the watchmaker, which has been
cited in argument, and the analogous one of money
being entrusted to a messenger, to be carried to the
bankj and appropriated by the party on his way. In the
present case, the party who pledged the property, by
that act not merely gave a right of possession, but a title
to the goods themselves, which, by lapse of time, became
absolute, and enabled the party to sell, and give a valid
right to all the world. In this respect it was different
from any of the former cases relied on by the Crown.
Besides, the use of the word embezzlement in the statute
seemed to denote that the Legislature did not view the
case as one of theft ; and as it would be going farther
than any precedent, he was inclined to hold that the
facts alleged in the first ten articles did not support the
charge of theft.
Lord Cockburn. — It is with some hesitation that I
concur in the opinion just delivered.
Lord Wood. — I concur. I think the facts set forth
only justify a charge of breach of trust. If the argu-
ment for the Crown were sound, there could be no such
offence as breach of trust, inasmuch as to constitute that
crime there must have been an original lawful possession
given to the guilty party by the true owner.
Lord Ivory. — I concur on the grounds stated by
18S0.
Theft.
1850.
Theft.
306 CASES BEFORE THE HIGH COURT
No. HI. Lords Moncreiff and Wood. There is a great distinction
crosBgrove between a lawful possession de facto, and a legal posses-
or Bradley, ^j^^ profrio juTC. Here the latter was the right which
'leb.T."^ ■ the prisoner is alleged to have had, and it seems to me
. impossible to draw any distinction between the appro-
priation of the goods pledged, before the period when
the sale might lawfully' take place, or the proper title of
the pawnbroker, and his unlawful retention of any sur-
plus pence which might be realised thereby, over and
above the amount advanced, together with interest
thereon, at proper rates ; yet no one would undertake to
say that the latter case would be one of theft.
The Lord Justice-Clebk. — I concui* in the opinions
which have been delivered. Looking to the legal im-
port of the indictment, and the nature of the contract of
pledge, I think embezzlement or breach of trust is the
appropriate nomen juris in the circumstances. It is quite
different from those former cases, where only a limited
and temporary custody, unaccompanied with any title of
property in the things themselves, had been given, for
the purpose of having something done by the party who
committed the offence. In this case a contract is set
forth. It is for breach of that contract that the prisoner
is charged ; and I am of opinion that the criminal viola-
tion of a contract of trust constitutes the offence known
by us as breach of trust or embezzlement, and not that
of th^ft.
The objection to the relevancy of the first ten articles
was thereupon sustained.
On the motion of the Advocate-Depute, the Court
deserted the diet against the prisoner pro loco et tempore.
AND CIRCUIT COURTS OF JUSTICIARY. 307
John Lock and Patrick Do6len, Suspenders — Logan.
AGAINST
John Muik Steele, Respondent — Crcmfurd.
Suspension — Sentence. — Held that it was necessary that every sen-
tence should be signed by two Justices ; and a Note of Suspension
passed, in respect the sentence under review had been signed by one
only, although two were present when it was pronounced.
This was a suspension of a sentence pronounced in the j_ Lock\
Burgh Court of Airdrie, whereby the complainer was ^^ g°°gj°
sentenced to be imprisoned for a period of forty days, on High court.
a charge of having assaulted the police whilst in the ^«^-^6-
execution of their duty. ^ suspension.
The sentence was in the following terms : —
' Having considered the charge, with the evidence adduced, and
' heard the parties viva voce, find the charge proven, and that the said
' John Lock and Patrick Doolen are guilty as libelled ; and in respect
' thereof,' decern and adjudge the said John Look to be imprisoned in
' the prison of Airdrie, or any other legal prison within the county of
' Lanark, for the period of forty days from this date ; and the said
' Patrick Doolen to be imprisoned in the prison of Airdrie, or other
' legal prison foresaid, for the period of thirty days from this date.'
(Signed) ' Arch. Gerard, J. P.
' Robert Watt, C. D.'
The process was instituted under the 3d and 4th
Will. IV., ch. 108.^
1 By section 49. of this statute, it is enacted, ' That in all prosecn-
' tions against offenders for crimes committed within the Upper and
' Middle Wards of the said county, or within the said burghs of La-
' nark and Hamilton respectively, where the punishment shall not ex-
' ceed sixty days imprisonment in either of the said jails, or imprison-
' ment, accompanied with hard labour, for a period not exceeding sixty
' days, or the fine to be imposed shall not exceed £5 Sterling, the proce-
' dure against such offender may be of a summary nature, without any
' written pleadings ; and the Sheriff or Justices of the Peace of the
' said county, or the Magistrates of the said burghs, within their re-
spective jurisdictions, shall be authorised and empowered in all such
308 CASES BEFORE THE HIGH COURT
j^Locf & Pleaded for the Suspender — The statute gave power
p. Dooien both to the Justices of the Peace and the Sheriff to try
-^ — — the cause. No doubt the Sheriff alone might sign the
Feb.°6"'^ " conviction ; but if the proceedings were heard before the
'^^"^ Justices of the Peace, it required the two Justices to
Suspension. ^^^^^ according to the rule of the common law, whereas
the sentence and warrant were only signed by one.
Crawford, for Respondent. — It appeared by the re-
cord that two Justices were, in fact, present when the
cause was heard ; and it must be taken, from the terms
in which the conviction was framed, that both concurred
in the sentence.
The Court unanimously held, that, as by the common
law of Scotland it was necessary, not only that two Jus-
tices should be present at the hearing, but should also
sign the sentence, in case of conviction ; and in respect
that the present sentence and warrant of imprisonment
bear to be signed by one Magistrate only, the Court
passed the note of suspension with expenses.
John Leishman, W.S. — Wothekspoon & Mack, W.S., Agents.
prosecutions to hear parties and witnesses viva voce, and to award
such legal punishment as the crime requires, not exceeding that
herein prescribed, or to remit the case for investigation and trial in
any other legal form before a competent court ; provided always,
that in all such summary trials, a record shall be kept of the charge,
and of the judgment pronounced against such offenders, by the Sheriff-
clerk or his deputes, and by the Clerk of the Peace or his deputes,
for the county, and by the respective Town-clerks for the said burghs,
in a book to be kept in the form set forth in schedule (B) hereunto
annexed ; and the said Clerk of the Peace or hia deputes, and the
said Town-clerks, acting as legal assessors to the Justices and Ma-
gistrates respectively in such summary convictions ; and an extract
or duplicate of the entry in the said book, signed by the judge, and
by the clerk acting for the time, shall be the authority to the Magis-
trates having charge of the said respective jails, and their officers
and keepers of the said jails, for executing the sentence of each com-
mitment.'
Jan. 6.
J»oO.
AND CIRCUIT COURTS OF JUSTICIARY. 309
Present,
The Lord Justice-Clerk,
Lords Moncrbifp and Wood.
Her Majesty's Advocate — Deaa A.D. — J. M. Bell A.D.
AGAINST
Alexander Fraser Crawford — Shand and Macconochie.
Indictment — Relevancy — Threatening Letters. — Held, 1st, That
it was not necessary, in an indictment charging the sending of
threatening letters, to negative the truth of the charges therein con-
tained. 2nd, That the Veritas of the charges made could not be
proved, either in justification or mitigation, by the pannel.
Alexander Fraser Crawford, clerk or writer, was Aiex^l.
indicted and accused, That albeit, by the laws of this Crawford
and of every other well-governed realm, the wickedly, j^^''^™nd
maliciously, and feloniously. Writing and Sending, or Feb. u.
causing to be written and sent, any Threatening Letter, -^ — '—
particularly for the purpose of extorting money, is a ing Letters.
crime of an heinous nature, and severely punishable :
Yet true it is and op verity, that you the said Alexander Fra-
ser Crawford are guilty of the said crime, actor, or art and part : In
so PAR AS, on the 30th day of August 1849, or on one or other of the
days of that month, or of July immediately preceding, or of September
immediately following, within or near the house situated in or near
Potterrow, in or near Edinburgh, then and now or lately occupied by
Angus M'Kay, a type-founder, then and now or lately residing there,
or at some other time and place in or near Edinburgh or elsewhere to
the prosecutor unknown, you the said Alexander Fraser Crawford did,
wickedly and feloniously, write, or cause or procure to be written,
maliciously, a threatening letter, conceived in the following or similar
terms : —
' Mackays Lodgings
' 39 Potter Row 30th Augt ] 849
' Sir,
' After the many years I have been in your employment,
' and during which time I served you as faithfully as if you had been
310
CASES BEFORE THE HIGH COURT
No. S3.
Alex. F.
Crawford.
High Court.
Jan. 6.
1850.
Threaten-
iug Letters.
my own father, I have been at a loss to account for your very ex-
traordinary and unfeeling conduct towards me since I^eft you in
January last, and can now only account for that conduct as indi-
cating a wish on your part to withhold the £1000 you are due me
in terms of your bargain with me on the Sea Shore of Ardrossan in
the year 1835. I need hardly mention that that bargain (which I
have again and again asked you to implement) was, that I should
shew that the funds of John Crawford situated in Scotland were
equal to the payment of his Scotch debts. This you know I con-
vinced you of many years ago, and indeed had it not been for your
own grasp-all disposition the whole of the Scotch debts might have
been paid and settled during the year 1837, leaving a large reversion
in favour of your father-in-laws family. For this acting on your
part however I am not to blame and therefore I shall not submit to
the reason you have oft assigned for withholding from me the pay-
ment of this £1000. Namely that I was not only to make it clear
that the Scotch funds would pay the Scotch debts, but was to remain
perfectly teetotal during the time of my being occupied in bringing
out such a result. You know well that no such condition as the
second was ever mooted by you, and I have therefore now to state
that with the view of saving further discussion between you and me
I shall restrict my claim against you for this £1000 to £200, and
an assignation to the £100 due you by ray father, along with such a
character as my unswerving exertions for the benefit of yourself and
your father-in-law's family merits. If these conditions are refused
I shall then furnish a Copy of this Letter with the following infor-
mation to Messrs Jollie, Mr Hill, Mr Ranken, M' Balfour, Dr Ar-
thur, and to Messrs Stephen Rowan Crawford and Jas Crawford
through their agent here Mr Macrae, which will put your actings in
various ways in their proper light : —
' ist. Debts against John Crawford! s Estate purchased hy you.
' In you whole correspondence and in the whole proceedings before
the Court you have constantly alfirmed that these debts were not
purchased by you for the benefit of John Crawford's family, or
under any factory granted in your favor by your mother in law
Mrs Crawford. Both of these statements you know to be utterly
untrue as they were bought by you under and in virtue of a factory
granted to you by M" Crawford in the year 1833. This factory
tho' unrecalled you have taken care to keep out of view. The money
' you drew and have still to account for on account of these debts will
' do much more than pay the £1000 & interest due to M" Mollison's
• Trustees, as well as save some thousands to John Crawford's Estate
' being the interest still payable upon these debts for which you have
' no claim against his funds.
« 2n<i.' Vitiations made hy you in the Bill Booh, Day Books and
' Ledger! of John Crawford S; Co. in the year 1835.
AND CIRCUIT COURTS OF JUSTICIARY. 311
You are aware that after proceedings were adopted in Court by No. S3.
Mr George Boyd Hay, by M™ Bonn, by Stephen Eowans Ex'ors ^^i^^_
and others, you founded on the alterations so made as if they had ■
been done at or about the time of John Crawford & Cob Bankruptcy jan. g.
in 1816. These you know I can easily point out. This conduct I860,
without any advice from me the Creditors referred to will know how Threaten-
to appreciate after these facts are made known to them. '°S Letters.
' 3rd. John Crawfords Ledger.
' You also know that the Accounts of Mr John Cumraing and of
Stephen Rowan in this Ledger were altered by you with the view of
preventing these parties from getting payment of two promissory
notes due to them by John Crawford, the one for £500, the other
for £2500. In this attempt you have hitherto been successful, but
will be so no longer after the facts now stated are made known to
the parties interested.
' 4tli. Interlocutor of 7th March 1835,
' You are aware that you altered this Interlocutor with the view of
making it appear that the dividend which it ordered was a fixed one
of 14/ per pound, instead of a general payment to account under cer-
tain conditions. The serious nature of this offence yon know too
well to require my dwelling upon it.
' 5th. _4j to the £1000 guaranteed hy you to M'>'> Mollison's
' You are aware that in your examination in reference to this debt
' you gave your oath before the Commissioner that you did not know
' where the original agreement between these Trustees Mr Wilson and
• yourself was, altho' I had previously shewn you that it was in the
' hands of Mr Patrick W.S. You also swore that you had produced
' to the Commissioner every Letter connected with your liability for
' this £1000, knowing well that many of the most important Letters
' were kept back by you. •
' 6th. Bond/or £2000 by M'' Charteris in favour of your mother
' in law M" Crawford.
' You have alleged to her family that you uplifted this sum and
' interest with her consent, and that you afterwards accounted there-
' for to her, knowing both of these statements to be untrue. Neither
' Mrs Crawford nor M' Wilson who you say got the money was
' aware of where it came from altho' you no doubt wrote Mr W. that
' you had to borrow money to oblige him, but from whom you have
• never yet stated in so far as know.
' 7th. Factory granted to you by Mr> Crawford in 1 836.
' You have ever since Stephen Crawford's return in 1838, stated
' this factory to be the first, — knowing as already stated that this
' statement was untrue. This factory of 1836 was as you know a
' mere nominal matter, being executed to prevent John Crawford'a
X
312 CASES BEFORE THE HIGH COURT
No. S3. ' Creditors from appointing a factor in the room of Mr M'Lachlan
Cra^wford. ' ^^^^ ^^'^d in that year.
^. ^^^^^ ' 8th. Mrs Crawford's Trust Deed of 1833.
Jan. 6. ' You know that in the whole proceedings which have taken place
18S0. i JQ Court in regard to this Deed, you have held it up as an existing
Threaten- ' document, notwithstanding the fact that you gave up every right you
ing Letters. , ^ja^ ^j^^gj, j^^ ^^ ^^jj ^^ ^„ Wilson. This is proved by your Letter
' to that gentleman in 1839. In these proceedings you have also
' stated that the addition made to this Deed after your wife's death
' was suggested and prepared by Mr Patrick, while you know well
' that this is an utter untruth. They were suggested and prepared by
' the late Mr James Donaldson, as his Letter to you, but which you
' have hitherto concealed, will prove.
' 9*. Chancery Money.
' You know that in accounting for these funds you have brought
« against them upwards of £8000 for my labour from the year 1835
' to 1843 for which you have no legal claim, — Altho' you promised
' to me that I was to receive a per centage on the amount of my said
' labour, which like your other promises I am of opinioa you had no
' intention of keeping when you made it. But be this as it may, I
' contend you cannot bring against these funds more than you actually
' paid to me during the period stated, which will not amount to more
' than £800. You can farther have no claim for the £4000 odd you
' charge as commission for the drawing these funds. The mode in
' which you are bound to make your charges against this money is
' established by your account which Mr "Wilson docquetted in June
' 1835.
' 10. Your Manifold Writer.
' You have again and again all but affirmed that Mr Stephen
' Rowan Crawford had stolen this useful apparatus out of your writing
' room and had thereby become possessed of, and kept up Letters
' which you had written to your mother in law, giving her as you
' alleged States or Memoranda of how you had expended the money
' you drew from Chancery. Now the truth is that that manifold
' writer was in the hands of your own family — and that every Letter
' it ever contained were returned to you in the packet about which
' you made such a noise and incurred so much expense, — but still not
' one of these Letters gave any information to Mrs Crawford or to any
' one else as to how you had expended the Chancery money — Altho'
•' I believe a part of it crossed the Atlantic and another part of it pur-
' chased a House in James Square, but as to which I shall, in the
' meantime, say no more, — though I beg of you not to suppose that
' such is not fully in my power.
' Before making any communication to third parties (except to
' your Agent M' James Macknight) on the subject of this Letter I
AND CIRCUIT COURTS OF JUSTICIARY. 313
' shall wait till .the forenoon post of Monday first for your reply. If No. S3.
' I do not hear from you by that time you will have yourself for my Q^^^g^^^
' then following the line of conduct I have stated in a previous part of High Court.
' this Letter. Jan. 6.
' I am Sir ^850.
' Your mo obed' servant Threaten-
' Alex. F. Crawford.' i"g Letters.
and you did, time and place aforesaid, address, or cause or procure to
be addressed, the said letter, at the end thereof thus : —
' ToWmCrawfurdEsqr ^
' of Cartsburn' J
which letter was meant and intended by you for William Crawfurd
of Cartsburn, then and now or lately residing in or near Bellevue
Crescent, in or near Edinburgh : Farther, time above libelled, within
or near the house situated in or near Bellevue Crescent aforesaid, then
and now or lately occupied by the said William Crawfurd, you the
said Alexander Fraser Crawford did, wickedly, maliciously and feloni-
ously, leave or deliver, or cause or procure to be left or delivered, the
foresaid threatening letter, addressed as above, with some person or
persons to the prosecutor unknown, then and now or lately in the ser-
vice of, or residing with, the said William Crawfurd, for the purpose
and with the intention of the said letter being delivered to the said
William Crawfurd ; and the said letter was, on or about the following
day, or within some short period thereafter, received by the said Wil-
liam Crawfurd ; and all this you the said Alexander Fraser Crawford
did for the purpose of extorting money from the said William Craw-
furd : LiKEAS (2.) on the 10th day of September 1849, or on one or
other of the days of that month, or of August immediately preceding,
or of October immediately following, within or near the foresaid house
situated in or near Potterrow aforesaid, then and now or lately occu-
pied by the said Angus Mackay, or at some other time and place in
or near Edinburgh or elsewhere to the prosecutor unknown, you the
said Alexander Fraser Crawford did, wickedly, maliciously, and felo-
niously, write, or cause or procure to be written, a threatening letter,
conceived in the following or similar terms : —
' Mackays Lodgings 39 Potter Eow
' September 10th 1849
' Sir
' I received your Letter of the 5'h Instant the contents of
' which do not surprise me as any one who had been guilty of the de-
' ceipt and duplicity exposed in my communications to you can very
' well afifbrd to deny and apparently reprobate any truth. In that
' Letter you state that my communications to you aud to your Agent
' created sarprise and indignation. That they may have surprised
' your Agent I can well believe, but that they surprised you I have
314 CASES BEFORE THE HIGH COURT
No. 53. ' no hesitation in saying that this could only have arisen from your
Crawford ' I'^^'Dg thought I would never reveal under any circumstances what
' I state in my Letter to you ; or you must have laboured under a very
HighCourt. , ."'.•'„'•'„ „ . ^
Jan. 6. strange misconception of the extent oi my recollection.
18S0. ' I gijall now shew you that if what I state is calumnious, it is not
Threaten- ' the less true, and that it is in my power to prove these allegations.
ing Letters, i gyj. before doing so I beg to premise that I am neither actuated by
' ingratitude, nor by anything dishonourable, altho' you negative my
' allegation as to your promise of £1000 to me God and your con-
' science best knows that you did make that promise, and the reason
' for your doing so was very plain, viz., that you wished to have the
' whole Chancery money for division among yourself and your Father-
' in -law's family. Mr Wilson as you know was willing to give up-
' wards of £8000 (Marryats dividends) to insure this result.
' The first of my allegations is that you under a factory of 1833
' purchased up the debts against Your Father-in-law's Estate. If
' you refuse to produce this factory I have a copy of it in my posses-
' sion. I presume you will hold this as sufficient evidence to substan-
' tiate the truth of this allegation.
' 2nd & S^d. The Books referred to and the Report taken by
' Mess" Jollie on these Books, by two eminent Accountants will
' prove these.
' 4*. As to the Interlocutor of 7"» March 1 835, will be proven by
' that paper itself, and by what you will no doubt recollect of my
' having mentioned to you about it 18 months ago that Mr Henry
' (Jollies Clerk) threatened me with criminal proceedings as to this
' very alteration.
' 5tli Is regarding the £1000 you guaranteed to MoUison's Trustees.
' that your Oath in this Case was inconsistent with truth I need only
' refer to your Deposition in which it will be seen that yon distinctly
' swore that you did not know where the original agreement was,
' altho' as I again repeat, I pointed out to you in the copy Inventory
' of original papers handed over by you to M' Patrick that that docu-
' ment was in his possession. 'That you kept back letters of the utmost
' consequence against yourself will in this Case be proven by the
' letters so retained
' 6*. As to Charteris' Bond. The Discharge you granted for this
' Bond will shew I have no doubt that yon uplifted the money under
' M" Crawford's factory of 1833, — and I defy you to shew that
' Mrs Crawford was aware you did so, or that you ever accounted to
' her for a penny of the money. Every Shilling you gave her was
' under the Agreements between you and her. This is proved by the
' Agreements which were prepared by M"" Donaldson in the year
• 1 833, and Copies of which were sent to M' Wilson to London in
' that year. The various discussions between you and him on this
' Subject were too long for my here detailing them. They are fully
ANli CIRCUIT COURTS OF JUSTICIARY. 315
' detaikd however in the Correspondence between him and you a large No. S3.
' proportion of which has not even been seen as yet by your own Crawford.
' Agents. I also defy you to produce a Discharge by M™ Crawford ' .
' for this money, or the scrape of a pen that she was aware you had jan. 6.
' uplifted it much less that you had given her any account of it. ^'^^O-
' The 7'^ requires lio proof further than what I have already stated Threaten-
' and the Letters which were written to you by M' M'Naught and '°S Letter.
' Mess" Jollie.
' 8* Is regarding Mrs Crawford's Trust Deed of 1833. I have
' only again to refer to your Letter to Mr Wilson in Deer 1839 and
' to Mr Wilson's Letter to you brought to this Country by Mr Stephen
' Rowan Crawford in Nov' 1838.
' 9* Is as to bow you accounted for the Chancery money. My
' Proof on this subject is the Accounts for my labour made by you
' and your general Account against these funds, a copy of which is in
' the possession of Mr James MacKnight. I am now preparing and
• will soon have ready a State of what that Account should be. It
' will shew that Mr Stephen Eowan Crawford was not far wrong in
' the sum he held you to be due to his father's Estate.
' As to the 1 Otli allegation, I beg to refer you to my own family
■ who know something of the matter. As to the money that crossed
' the Atlantic I allude to a man in New York taking the name of
■ Alexr Watson though his proper name is Alex' Waugh. This
' man as you well know left Edinburgh charged with embezzling a
large proportion of the City funds, and hence the cause of his chang-
ing his name even when he reached America. You have the merit
of not only communicating with this man, but in trusting to his care
a part of the Chancery funds, and as to the house you purchased in
James Square, it was for the benefit of the sister of this very man,
and who is still kept by you in East Broughton place, and in whose
company you know you' have spent nearly every night for many
years past. I can add much to this when I choose, but have no wish
to do so.
' I have now shewn you whether the statements I have made against
you are calumnious or not, and as to your allegation that I wish to
extort money from you, I, to use your own expression, utterly de-
spise such an insinuation. I have only asked you to fulfil in part a
promise solemnly given by you to me, and which I never thought
you would deny, otherwise you may rest assured I would never have
spent so many fruitless years in your employment. Ingratitude can-
not therefore rest with me. You pocketed thousands while you paid
me with hundreds. You are now only acting however in the way
I have been told even by your own friends and relations you would
if I had not black and white upon any bargain I had with you. In
addition to the statements I have already made I have still one as
grave as any of the rest — namely — that you in the year 1838 got
316 CASES BEFORE THE HIGH COURT
No. 53. ' me to obtain for you a Notarial Copy of your Marriage Contract,
Alex. F. i Ti^iiici, copy in place of being made from an original was made from
— : ^ ' one given to me by yourself — The Copy you so obtained as I believe
Jan.'e. " ' y^^ produced in the Court of Chancery. The proof of this is your
.1850. ' own son M^ Thomas, M' Swanston the Messenger in Edinburgh, and
Threaten- ' the Witnesses who signed the Notarys false Certificate.
ing Letters, t j^g J ]jaye now given you the proofs of my allegations, I again re-
' peat that I have no wish to expose these, nor will I do so, if you will
' do me anything like justice — if not you leave me no other alterna-
' tive but to seek redress as I best may.
' You charge me with innumerable irregularities, broken promises,
' and oaths, but had you had even a spark of honor you would have
' ejtplained what you meant by these expressions. They merely
' amount to this that I sometimes got the worse of drink, and nothing
' more. "When I made these promises they were made in good faith,
' and would have beeu kept had it not been for the dreadful life my
' wife and family made me live at home.
' If I do not hear from you either through a private channel or
' otherwise by Tuesday first (to morrow) I shall then make use of mj
' information in whatever way I think fit.
' I am,
' Sir
' Your obed' Serv'
' Alex. F. Crawford.'
And you did, time and place last above libelled, address, or cause or
procure to be addressed, the said last-quoted letter, at the end thereof,
thus : —
' Wm Crawfurd Esq
' of Cartsburn
' 5 Bellevue Crescent,'
which said last-quoted letter was meant and intended by you for the
said William Crawfurd : Farthek, time last above libelled, within or
near the said house, situated in or near Bellevue Crescent aforesaid,
then and now or lately occupied by the said William Crawfurd, you
the said Alexander Eraser Crawford did, wickedly, maliciously, and
feloniously, leave or deliver, or cause or procure to be left or delivered,
the foresaid threatening letter last above libelled, addressed as above,
with some person or persons to the prosecutor unknown, then and now
or lately in the service of, or then residing with, the said William
Crawfurd, for the purpose and with the intention of the said letter last
above libelled being delivered to the said William Crawfurd ; and the
said letter last above libelled was, on or about the said last-mentioned
date, or within some short period thereafter, received by the said
William Crawfurd ; and all this you the said Alexander Eraser Craw-
ford did for the purpose of extorting money from the said William
Crawfurd.
AND CIRCUIT COURTS OF JUSTICIARY. 317
The counsel for the pannel objected to the relevancy No. 53.
of the indictment. The major must be taken to be one Crawford.
substantive charge, and read altogether. The word High Court,
particularly not being inserted for the purpose of charg- iTs'o.'
ing an aggravation merely, the allegation was, that the Threaten-
pannel had been guilty of sending threatening letters for "^ ^"*™'
the purpose of extorting money.
This was admitted on behalf of the Crown.
It was then objected, that the minor did not answer to
the charge there made. It was said that the letters
were written for the purpose of extortion, and the in-
dictment was open to two objections. 1st, That it did
not negative the truth of the charges made in the letters
against the party to whom they were sent ; and, 2dly,
It did not deny that the alleged debt claimed therein
was due. All the precedents of indictments for sending
threatening letters, imputing offences, had negatived the
truth of the statements contained therein, by setting
forth, at the end of the minor, that the pannel knew the
statements in the letters to be false (case of Ledingham,
Aberdeen, April 14. 1842 ; Broun, vol. i. p. 254.) Not
having negatived the truth of the charges contained in
the letters, the pannel was entitled to assume that the
allegations he had made therein, as to the conduct of
the party to whom they were sent, were true, and that
he would be able to substantiate their verity on the
trial. But,
2dly, It was alleged that these charges were made for
the purpose of extorting money, whilst the indictment
did not negative the allegation of a just debt contained
therein. Extortion could not be the obtaining of money
due, by whatsoever means. As used in a criminal sense,
it must signify an endeavour to obtain, by means of
threats, money to which the party had no right. In the
statute 7th and 8th Geo. IV. cap. 29, section 8,' which
1 By the 7th & 8th Geo. IV. 0. 29, § 8, it is enacted, ' That if any
' person shall knowingly send or deliver any letter or Trriting, de-
318 CASES BEFORE THE HIGH COURT
Aiek'l' formed the code of England applicable to the sending of
Crawford, threatening letters, it was required that the party should
" jan'^e"'^'' ^^^^ ^^^^ ®° without reasonable or probable cause ; and
i"^o- in the case of the Queen v. Mein (I Cox, Criminal Cases,
Jhreate^- p. 22, Tyndal, C. J.), held, that on the construction of
the statute, the Jury must be satisfied, before they could
convict, not only that the party had no reasonable or
probable ground in law to make the demand, but that
she believed that she had none such at the time of
writing the letter. Such was the construction put
thereon by the text writers on English law, Russell on
Crimes, vol. ii. p. 709, et seq. This was analagous to
what was required in Scotch law, in cases of reset of
theft and otherwise, where guilty knowledge must be
averred.
Deas. — The last objection was sufficiently answered
by all the precedents which were in the form which had
been adopted in the present case, concluding that all
was done for the purpose of extorting money. That was
reasonable ; for even should it be proved that there was
a just debt owing to the party who sent the letters, the
law would not allow such a mode of enforcing payment,
as threatening to accuse the debtor of heinous or in-
famous offences, in case payment was not made by the
time he appointed. It was the preferring of such
' manding of any person, with menaces, and without any reasonable
' or probable cause, any chattel, money, or valuable security; or if
' any person shall accuse or threaten to accuse, or shall knowingly
' send and deliver any letter or writing accusing or threatening to
' accuse, any person of any crime punishable by law with death, trans-
' portation, or pillory, or of any assault with intent to commit any
' rape, or of any attempt or endeavour to commit any rape, or of any
' infamous crime, as hereinafter defined, with a view or intent to ex-
' tort or gain from such person any chattel, money, or valuable security;
' every such offender shall be guilty of felony, and, being convicted
' thereof, shall be liable, at the discretion of the court, to be trans-
' ported beyond the seas for life, or for any term not less than seven
' years, or to be imprisoned for any term not exceed four years, and,
' if a male, to be once, twice, or thrice publicly or privately whipped,
' (if the court shall so think fit), in addition to such imprisonment.
AND CIRCUIT COURTS OF JUSTICIARY. 319
charges that was the substantive matter of offence, and No. 53.
. « Alex F
that was totally irrespective of the right to demand pay- Crawford.
ment in a legal way. The matters of which the party High Court,
was accused in the present case were of the most heinous ''isso'
description, not only sufficient to destroy character, but Threaten-
which would, if proved, subject him to heavy criminal '"s betters.
penalties.
The other objection, that the indictment did not nega-
tive the truth of the charges made, was important, and
the present indictment had been drawn after grave con-
sideration. There was no direct authority as to whether
there was any necessity for so negativing the truth of
the charges, though he would admit that the prece-
dents did negative the truth.
The Lord Justice-Clerk. — Are we to assume that
the charges are false, without your having stated them
so to be ? Take the charge of having altered an interlo-
cutor. The pannel may prove that such alteration took
place.
Deas. — It is not the same thing to say that T must
set forth that the charges were false, and that I must
prove them to have been so.
The Lord Justice-Clerk. — If it would be a good
defence to prove the Veritas, surely you must negative
it in the charge.
Deas. — The judgment to be pronounced will enter
very deeply into the question, as to whether the pannel
could lead evidence to support the truth of his accusa-
tion.
The Lord Justice-Clerk. — It is very proper that you
make that suggestion. I think that in giving you an
interlocutor of relevancy we should absolutely decide
the point, that the party could not lead evidence as to
the truth of the charges he made. In the case of Pater-
son, High Court, November 8. 1843 ; Broun, vol. i.
p. 629, after an interlocutor of relevancy, to which the
party made no objection, he wished, in his address to the
Jury, to have demonstrated the untruth of several passages
\
320 CASES BEFORE THE HIGH COURT
No. 53. of the Bible, but the Court refused to allow him to do
Alex. 1. . ^ J J •
Crawford. SO after that interlocutor had been pronounced ; and it
High Court, is the great advantage of the interlocutor of relevancy
1850.' in the law of Scotland, that what is alleged in the
Threaten- major is thereby fixed to constitute an offence which
mg Letters. gg^jjjjQ^ thereafter be redargued.
Deas. — It was not necessary to prove falsehood, and
therefore it was not necessary to set it forth. And, 2dly,
the truth or falsehood of the accusations made had no-
thing to do with the offence. The pannel had not said
in his letter that he would inform the public authorities.
All the parties named were private individuals. This
was an attempt to compound justice, which was criminal
in itself. If the pannel could enter into a proof of the
Veritas of his charges, every man would be liable to be
put upon his trial for the most heinous offences, if any
such should be imputed to him by parties who had
threatened him with exposure. That would be contrary
to the spirit of the law. It would also be inextricable
in practice, as a counter-proof would then be necessary,
and the effect would be, to place every person to whom
a threatening letter was sent, in such a position that he
would have no alternative but pay money rather than
pass through so painfiil an ordeal. In so far as the
English decisions on the statute referred to threw any
light on the subject, they were in favour of the construc-
tion contended for on behalf of the Crown. In the case
of the Queen v. Hamilton, 1 Carrington and Kirwan,
p. 212, Rolfe B., held it to be immaterial whether the
charge contained in the letter was true or not. This
was an interpretation of a statute wherein to constitute
guilt, want of reasonable and probable cause was re-
quired, and must be considered as having been adopted
as being most in accordance with the common law,
which interpreted the want of reasonable and probable
cause to thfe obtaining of the money only, and not to the
preferring of the charges contained in the letters.
The Court having considered for some time.
AND CIRCUIT COUETS OF JUSTICIARY. 321
The LoED Justice-Clerk said, it is unnecessary for ^°^J^p_
us to deliver opinions in this case, as we think that the Crawford.
indictment might be much improved as regards one of ^'siiCouit.
the objections, namely, that it does not negative that the iss'o.
debt claimed in the letter was a iust demand. We Threaten-
1.11.1 111 !•• loii . 1 ing Letters.
think this should be more distinctly set forth than m the
present indictment, either by a distinct negative in toto,
or by stating that the amount demanded was greater
than any sum acknowledged by the party from whom it
was claimed, or that it was not constituted, or that it
was compensated by counter demands, or in any other
similar manner shew that the party had no right to
instant payment ; but we don't decide that such an
amendment would entirely remove the objection. As to
the second objection we give no opinion whatever. If
the Crown wish the question to be settled, they will con-
sider whether they should frame any other indictment
in a corresponding manner. If the question arises, pro-
bably the whole Court will consider the matter, when
that judgment will be pronounced which seems most
consistent with the general law of the land.
On the motion of the Advocate-Depute, the Court
deserted the diet against the pannel pro loco et tempore.
Thereafter, of this date, the pannel was again indicted Feb- h.
on a libel containing the following addition to each
charge : —
' You well knowing that the money of which you demanded pay-
' mqnt from the said William Crawfurd as aforesaid was not justly
' due by him to you, or was not admitted by the said William Craw-
' furd to be justly due by him to you.'
The arguments were substantially the same as on the
former occasion. '
The Lord Justice-Clerk. — This case is most import-
ant, in respect of both the objections which have been
taken to the indictment. I apprehend that those objec-
322 CASES BEFORE THE HIGH COURT
No. 53. tions are connected more than has been assumed in the
Alex. F.
Crawford, coursc of the argument ; and I think the reasons which
HighCourt. apply t© the repelling of the first objection have equal
18S0. ' application to the second, as to the necessity of aver-
Threaten- ring the falschood of the accusations threatened to be
ing Letters. ,
made.
The true question is, what is really the essence of the
crime that is charged in the major, under the circum-
stances ? No objection is taken to the major in this case.
On the contrary, it is admitted to be good, and both ob-
jections resolve themselves into this, that the minor does
not come up to it. To my mind, the argument is falla-
cious. The act of sending a threatening letter, for the
purpose of getting money, instead of resorting to due
form of law in order to its recovery, is the crime. Every
man has a right to make his answer in a court of law to
all demands made against him, whether the Court thinks
his case good or not ; and the only punishment that can
be awarded against him, if his case be bad, is to subject
him to costs, and, in special classes of cases, he may be
liable in damages ; but before the case is tried in form
of law, no assumption whatsoever can be made on the
justice or injustice of his resisting a demand. If it were
necessary, in the case of a threatening letter, to shew the
mala fides of the party in making the demand, to convert
which into payment is the object of the letter, it would
exoner all persons in sending threatening letters ; for it
would be scarcely possible to shew that such party did
not entertain a strong belief that his demand was just.
The more wrongheaded the party, the more would he
believe that he was an injured man, and that his demand
was just. To require it to be averred that he had no be-
lief in the justice of his claim would therefore, in my
opinion, be absurd. The crime consists in using the
threat to concuss a person into paying a demand which
he intends to resist ; and the crime, the use of the threat
for that purpose, is the same, whether the party using
the threat thinks his demand good or bad.
AND CIRCUIT COURTS OP JUSTICIARY. 323
The second objection is, that the indictment does not ^^^^^^^
aver that the accusations contained in the letter were Crawford.
false, and known to be false. The first point here is, ^^^^'J,*^"'''"
whether there is any such practice in the style of indict- isso.
ments as to create a presumption in favour of the neces- .Threaten-
^ ' ing Letters.
sity of this averment in the indictment, as necessary for
the relevancy of the indictment. In the case of Leding-
hame, the circumstances perhaps might be thought to
justify the prosecutor in disproving the charges contained
in the letter ; but the style adopted in that indictment,
instead of being an ordinary one, is quite opposed to the
common form, and was, I believe, now causelessly so. In
the case of Murray, tried at Perth in 1820, where the
party was transported for seven years, the indictment did
not negative the truth of the charges contained in the
letter. No doubt there were in that case threats of per-
sonal violence, which made it less important that the
truth of the accusations should be denied ; but in the
case o{ Millar, in 1831, for demanding deeds from Lady
Mar, and a threat of exposing certain mal-practices on
her part, the indictment does not gainsay the truth of
the allegation. The like observations apply to the cases
of Douglas, 1837, and Nelson, 1839, where in neither
case was there any allegation that the charges made
were untrue. The case of Ledinghame is the first in
which I have been able to find any allegation that the
charges contained in the threatening letter were untrue ;
and I observe that in subsequent cases that the style
adopted in that case has not been observed. In the case
of Buchanan, 1842, Boss, 1844, Balfour, 1844, Muir,
1844, Balfour, 1844, Smith, 1845, there was not any
negative of the demand claimed being due, or the truth
of the accusations made.
These examples are sufficient to shew that there is no
practice so commonly observed as to create any presump-
tive case in favour of the objection.
The question therefore arises, is there any principle
which requires the public prosecutor to allege and prove
324 CASES BEFORE THE HIGH COURT
. ?,"'• ^^- the falsehood of the demand, and also of the accusations
Alex. F. '
Crawford, made ?
High Court. Jn considering this, I must take into consideration the
1850. question, whether in defence' or mitigation the Veritas of
Threaten- the accusation can be proved in behalf of the pannel. It
' would be impossible, in my opinion, to separate the two
points, and it would be very improvident tb decide the
one without looking forward to tte other point, although
that more directly will arise jn the course of the trial.
And it is much more convenient to consider the point
now.
Now, as I have before said, the criminal offence is
sending a threatening letter, with the view to extort
money.
The first objection is, I think, utterly untenable, when
the nature of the offence is considered. Take the case
of a threat of personal violence. Can the crime of using
such a threat depend on the justice of the debt ? Is it
to be contended, that if a man's debt can be shewn to
rest on probable grounds, he is innocent of "any crime
when he uses a threat of taking life, if that debt is not
immediately paid ? That is absurd. Every man has a
right to dispute the demand of his creditor in a court of
justice, and it is no answer to a charge of threatening to
burn his house, to say that the debt which the party
sought by that threat to recover was really due. Now,
there can be no difference as to the nature and essence of
the crime from the character of the threat : The crime
is the same, whether the threat is of personal violence or
of the character of those contained in the present case.
The crime charged against the pannel is, his having en-
deavoured to extort money, by means of threats, and that
crime is equally committed, whether the party using the
threat has a good or a bad debt, and whether he uses
a threat of personal violence, or such threats as here. I
think-it could not be left to the jury to say whether he
had a right to recover something from the party whom
he threatened to expose, any more than when he threat-
AND CIRCUIT COURTS OF JUSTICIARY. 325
ened personal violence ; and, in either case, if the threat ^,g^^p
is used, I think it could not be left to the jury, as any Crawford.
answer to the charge, to say whether the debt was just, ^^^j{,^°""-
or rested on probable grounds. Reference has been is^o-
made to the English law, and to the necessity of proving J'^^Ttte™
by that law that the demand was without probable or
reasonable cause ; but that law is altogether statutory,
and it is not for us to construe an English statute.
Moreover, under that law, in all the cases in which a
prosecution has taken place, the party threatenefd has
been the private prosecutor ; and I can readily conceive,
that the conduct of the private party may have been con-
sidered as inseparable from the nature of the crime ; for,
were any objection to be taken to the counsel for the
pannel endeavouring to establish, by cross-examination,
that the charges preferred in the letters were true, the
jury would at once assume that they were so, and might
perhaps act accordingly. The case assumes a totally dif-
ferent aspect here, where we have a public prosecutor,
who has to look to the public interest only, and affords
another illustration of the immense advantages our sys-
tem affords over that observed in the other end of the
island in criminal proceedings. When the statute is
passed on such matters in criminal law, it is often very
difficult to frame it so as to be adapted to the offence ;
and these statutes are often passed with too little consi-
deration. If the statements as to English law are cor-
rect, it seems to follow, that if a man's claim rests on
probable grounds, he may, with impunity, use any threats
well calculated to intimidate ; and that absurd result
seems to follow from the ill considered terms of the sta-
tute. In Scotland the offence rests on common law, and
therefore the principle of the case depends oh the real
essence of the crime.
The like observations apply to the second objection,
namely, that the indictment does not aver that the charges
were false, and known to the pannel to be false. Again,
we must here consider what is truly the offence the party
326 CASES BEFORE THE HIGH COUKT
^]ll^^^ is alleged to have committed. Plainly that "of having
Crawford, uscd threats for the purpose of obtaining money. That,
HighCourt. and that alone, is the essence of the charge. Now, sup-
1K50. posing the threat had been one of personal violence,
Threaten- at a particular time and place, would it be any answer
ing Letters. ^ * ■'
to say, that the threat was an idle boast, and that the
pannel did not intend to do any harm? Would he
be permitted to shew this, viz. that he had arranged
with his friends that they should be present, to be able
to prove that he had remained within doors, and never
proceeded to execute the violence he had threatened ?
Surely not, if the object of the threat was to extort
money. The crime would be complete by using the
threat. Here, indeed, the threat is different, but that
surely makes no difference. It is equally no answer to
the charge, that he undertakes to prove the accusation,
which he threatens to make known to others. For him-
self, he has no interest to come forward as private prose-
cutor. His only right was to give information to the
public authorities, in doing which, he was entitled to a
large protection, on principles of public policy. ^ Now,
suppose a crime to be committed by a party abroad, in
early life, when, after a period of thirty or forty years of
correct conduct, he returns home with a well earned for-
tune, and that some one happens to know of this early
delinquency, and threatens to expose him unless payment
is made of a sum of money : Is the crime of sending a
threatening letter not the same, whether the charge be
true or false ? Or is not the indictment equally relevant,
whether the falsehood of the charge which forms the
threat be alleged or not ? And if the indictment would be
relevant without alleging the falsehood, I cannot see how
the truth of the charge of Veritas would be relevant, or an
answer to the charge, or could be allowed even in mitiga-
tion. It is no part of the charge, that the accusations
in the letter were false. The charge is, that the pannel
made a threat, in order to extort money ; and that being
so, I do not see how, in logic or in law, the Veritas is
AND CIRCUIT COURTS OF JUSTICIARY. 327
relevant as an answer to the indictment, or in allevia- ^°-^^|,
tion. Crawford.
The observation of the Lord Advocate, that the ob- HighCom-t.
Feb. 11.
ject of the threat would be completely secured if the isso.
pannel were allowed to enter into any investigation of Threaten-
,,..„. ing Letters.
the truth of his charges, either in justification or extenua-
tion of his offence, seems to me most important. That
would make the criminal law not a protection to the
threatened party, but the means of injury, and would
thereby secure to the party the most unlimited and pub-
lic means of propagating his charge, without any answer.
For observe, if it is not necessary to allege the falsehood,
the public prosecutor's case would be proved by establish-
ing the threat, with the intent with which it was made.
He has no replication to the proof in defence. If the
pannel were to be allowed a proof of the kind proposed,
it would be in vain to talk of protection to the accused
party. He would have no means of controlling the
course of the trial ; and if he had, it would not be allowed
to him to bring affirmative evidence to answer the pan-
nel's defence.
I also attach much importance to the necessary incon-
venience which must arise if such a proof were to be
held competent. I do not say that inconvenience is ab-
solutely conclusive as to the course to be pursued, as in
a civil case ; but it is extremely important, either in civil
or criminal cases, not to allow collateral issues ; and un-
less we had some precedent to guide us, or some impor-
tant principle of justice to be served in the present case,
I am not disposed to allow an issue so plainly collateral to
be raised on so important a matter, thinking, as I do, that
every principle of justice is opposed to the course proposed.
In so far as a proof of the Veritas is proposed to be led,
by way of extenuation, I think it equally irrelevant,' even
assuming the charge contained in the threat to be true.
The threat held out is the issue the jury have to try, and all
that the Court would look on in determining the punish-
Y
328 CASES BEFORE THE HIGH COURT
No. 53. ment. I wish to reserve my opinion on one point whiclr
Crawford, might arisB Rs to One part of this indictment. I am not
High Court, prepared to say that a threat of making public that a party
1850. ' is living in an immoral and incorrect way, is sufficient to
Threaten- render the pai'ty making such threat amenable in a crimi-
ing e rs. ^^j court, though that be done to extort money. On this
question I give no opinion, as it may be contended, with
some plausibility, that public policy ought not to inter-
fere to prevent such exposure, if parties choose, by their
immoral life, to expose themselves to such threats ; and
I reserve myself until that point shall arise. It may
arise in the trial, and the facts may affect the relevancy
of the allegation, either as a defence or a mitigation. If
a married man, for instance, is living in adultery with a
woman, whom he visits in a house, though it may not be
known to his family, I am not at present prepared to say,
that, if a person gets that hold over him, and threatens
to expose him, if he does not buy his silence, either
such a threat ought to be subject of criminal trial, or
the truth might not be proved. I reserve my opinion
on both points.
Lord Mackenzie. — I concur in the conclusion at
which your Lordship has arrived, and in the reasons on
which you have founded your judgment. I think the
first objection, that the libel does not negative that there
was a debt due, is not well founded, and that it is equally
a crime, whether the sum demanded was a debt or other-
wise.
No man is entitled to take the law into his own hand.
If it was a relevant defence to prove that there was a
good demand against the debtor, it would then be equally
available, whatever was the nature of tbe threat used ;
consequently it would be no crime if the threat was one
that the debt would be enforced by personal violence, or
by holding a pistol to the head. It is said that that
would be robbery ; but what is robbery ? There can be
no doubt that that crime would be perfected if the money
AND CIRCUIT COURTS OF JUSTICIARY. 329
were obtained by means of threats of personal violence. f°^^y
If such defence were admitted, it would overturn every Crawford.
principle of law. ^Mb!^!"'''
As to the second objection, if it was good, it would i850.
apply equally whether the application for payment of a Threaten-
debt was good or not, and this I cannot hold. If a party
has committed an offence, his creditor's right is either to
inform the public prosecutor, or to make an application
for payment of his demand, without any threat of in-
forming other parties. To attempt to obtain payment
of a civil debt by means of supjpressing evidence of a
criminal offence seems to me unwarrantable in law.
It only remains to be considered, whether proof of the
Veritas is admissible either in exculpation or alleviation.
I do not think that it is ; and for the reasons stated by
your Lordship, on which I do not think it necessary fur-
ther to enlarge.
Lord Moncreiff. — I am of opinion that this indict-
ment is relevant. I do not consider that it is necessary
for the prosecutor to allege either, on the one hand, that
the debt demanded was not due, or, on the other, that
the accusations by means of which it was attempted to
be enforced were untrue. It seems to me that the of-
fence is complete so soon as the party attempts to en-
force either legal or illegal demands by illegal means.
As to the second objection, I think that it would be
far worse to hold that a criminal charge could not be
sustained, unless the indictment negatived the truth of
the accusations contained in the threats. As mentioned
by your Lordship, it would be giving the accusing party
the full opportunity of stating publicly in Court what he
had promised otherwise to conceal, in case his demand
were acceded to, that he be allowed to lead evidence
of the Veritas. It would be very dangerous if such were
the law. In the main, I concur in what your Lordship
has so well explained.
Lord Cockbukn. — I entirely agree, in so far as it is
necessary, to repel the objections taken to the relevancy
330 CASES BEFORE THE HIGH COURT
Aiek^F. ^^ *^® indictment. As to the other point, as to whether
Crawford, jt jg competent to the pannel to lead evidence either in
H^sh^c°P^'- justification or allevatiou, I feel some difficulty ; but ia
18S0. consequence of the opinions I have now heard, I do not
Threaten- wjsh to do more than reserve my opinion, until the
ing Letters. , , „ ■,. . ■■
question shall distmctly arise.
Lord Ivoey. — I agree with Lord Cockburn, as well
in repelling the objection to the relevancy of this indict-
ment, as also in reserving my opinion on the competency
of any special questions, by way of defence,, until the
same shall distinctly arise.
The objection to the relevancy was thereupon repelled.
Thereafter the. pannel pleaded guilty to the sending
of the first letter, as libelled.
In respect of which judicial confession, the Court ad-
judged the pannel to be imprisoned for the space of four
months.
Feb. 21.
18S0.
No. S4,
Bums t.
Present,
Lord Justice-Clerk,
Lords Moncbeiff, Coceburn, Wood, and Ivort-
Daniel Bukns, Suspender — Dear — Millar.
AGAINST
Richard John Moxey, Respondent — Neaves.
Suspension — Vagrancy. — Circumstances in which the Court sns-
pended a conviction in the Police Court, on the ground that the ori-
ginal complaint charged no cognizable offense.
^°^^y- This was a Suspension of a conviction on a charge of
"i^ib^sr'' ■'vagrancy, proceeding on a complaint which narrated that
^^^^- the suspender and others ' did all and each, or one or
Suspension, more of them, in contravention of the Edinburgh Police
AND CIRCUIT COURTS OF JUSTICIARY. 331
* Act 1848,' conduct themselves as vaffrants, by being No. 54.
° Burns «.
' found on the 14th day of February 1850 years, or about Moxey.
•* that time, in the house situated in St James' Square, High Court.
* in or near Edinburgh, occupied by Jane Marshall or mo. '
' Russel, and by Jane Brash or Shiells, or by one or other suspension.
* of them, or by some other person or persons to the
' eomplainer unknown* idle, and having no fixed places
* of residence, had no lawful means of gaining their live-
' lihood.'
On the same date the Judge found the complaint
proved against the accused, and sentenced him to forty
days imprisonment.
Pleaded for the suspender^That he was a pawnbroker
in Glasgow, and had only arrived in Edinburgh on the
day in which he was apprehended, having come on occa-
sion of business.
1 By the Ediuburgh Police Act, 11th & 12th Vict. c. 113, sect. 107,
it is enacted, ' That no order, judgment, record of conviction, or other
■* proceeditig whatsoever, concerning any prosecution instituted in the
' said Police Court, by virtue of this Act, shall be quashed or vacated
' for any misn&mer or informality; and all judgments and sentences
* pronounced by the Judge shall be final and conclusive, and not sub-
* ject to suspension, or advocation, or appeal, or any other form of re-
< view, or stay of execution, unless on the ground of corruption, malice,
* or oppression on the part of the Judge, or of such deviations in point
* of form from the statutory enactments as the Court of review shall
* think took place wilfully, or of incompetency, including defect of
' jurisdiction of the Judge, and which suspension, or advocation, or
' appeal, or review, or stay of execution, must be presented to the
' High Court of Justiciary within fourteen days after the date of the
* sentence complained of.' Sect. 157, ' That it shall be lawful' for the
* said Superintendent of Police and other officers to apprehend and
' bring before the Judge all such beggars, vagrants, and idle poor per-
' sons, men, women, or children strolling or wandering, or seeking re-
* lief, or found lying in any outhouse, stair, close, or area, or other
* place within the said limits, and it shall be lawful for the Judge to
' direct and caiise all such persons as he may not at the time convict
' of begging and vagrancy, as herein-before provided, to be handed
' over to the inspector of the poor or other official of the parish within
* which such persons shall have been found, in order that their claim,
' as paupers, may be itivestigated and dis)i<ised of according to law.'
332 CASES BEFORE THE HIGH COURT
No. 54. The 107th section of the Police Act shewed in what
Bums B. . , ,
Moxey. cascs revicw was excluded, and where it was competent.
High Court. One of these cases was want of jurisdiction. The Police
mo. ' Act had not created a statutory crime of vagrancy, out
Suspension, of specics facti which the. common law declared inno-
cent. This petition would not do if it had not come up
to the common law offence desipied in the statute. AH
that was alleged in the complaint was, that he conducted
himself as a vagrant, by being found in the house men^
tioned. Nothing was said as to the character of the
house. Section 157 of the act threw light on what was
meant by the term vagrant, and none of the circum-
stances mentioned in that section were averred against
the suspender in the complaint.
Pleaded for the respondent — ^The objection was merely
want of specification in the libel. As to the jurisdiction
there was no doubt, nor was there any doubt as to the
competency of the complaint. The fapt that the suspen-
der was found in a house so well known as Jane Brash's,
was quite sufficient to justify the police in apprehending
and the Judge in convicting him.
Lord Ivory. — Jane Brash's house is not a nomen juris
for vagrancy.
Neaves. — Perhaps the libel might have been more
specific, but the house was so well known, that his being
found in it was quite sufficient to constitute the crime of
vagrancy.
Lord Ivory. — ^The vagrancy here averred is being
found in a house idle.
The Lord Justice-Clerk. — It looks as if Jane Brash's
house was taken to include every thing in the 157th sec-
tion of the act.
Neaves — It was denied that he was a. broker, or that
he was there for any lawful purpose, and so the Judge
had found.
Lord Moncreiff. — I think there is a mistake in this
complaint. It libels nothing here but being found in
a house. Now, a gentlemen may be found in a house
AND CIRCUIT COURTS OP JUSTICIARY. 333
very idle indeed, but he is not therefore a vagrant. If No. oi.
the fact be as stated, that this house was of such a noto- Moxey.
rious description, why was it not averred ? High Court,
Lord Cockbuen. — I demur to the competency of this isso. '
appeal. It was competent for the Police Court to examine Suspension.
into a case of vagrancy. The answer made is, that this
indictment is not relevant. But are we to review the
objections to the relevancy of this charge in the Police
Court ? I do not think the defect in the libel is any good
reason for appealing the case to us. Besides, I do not
think the objection itself is well founded. It was com-
petent under this libel to prove the state of this house.
: LoED Wood. — I see no difficulty as to this Court
having a competency of review in this case. The police
have only jurisdiction in certain cases. Then, if this be
one where they have it not, it must be competent to bring
it up here. If the charge, taking it as a whole, is not a
police offence, then there is no jurisdiction given to the
Police Court by the act.
As to the second point, I concur with Lord Mon-
creiff. I say nothing as to what would be the effect
if the libel had stood merely on the words, conducting
himself as a vagrant ; but the specification here given is
being found idle in a house. Why, every man may
be, and is so, every day in his life. We have nothing
here as to the character of the house.
LoED IvoEY. — I concur entirely with Lord Wood.
The Lord Justce-Clerk. — I concur in the view that
the question of competency here does involve the merits ;
for if there is no statutory charge the conviction cannot
stand, and I abstain from giving any opinion as to the ge-
neral charge being sufficient or not. There is here given
a specification of what the vagrancy is ; but I do not think
there is any sufficient description of vagrancy, for his being
found idle merely is stated. Therefore it would be enough,
under this complaint, that when the police officers enter
a man's house he is found idle. Now, that would be vei-y
alarming, and cannot be tolerated, and it would have been
334 CASES BEFORE THE HIGH COURT
No. Bi. very easy to have altered it ; for you can combine the
Moxey. 157th Section, and make out the character of the house.
High Court. This suggests to me the great expediency of having the
1 850. " same review given over all police cases. In Glasgovr every
Suspension, man may bring any thing under review. Here they can-
not. Now, why should we not have the same review
over those cases in the Edinburgji Police Courts that we
have in those occurring in the Sheriff and Justice of Peace
Courts ? and, indeed, there are fewer appeals from those
places, such as Glasgow, where the Court has the un-
limited right of review, than from those like Edinburgh,
where there is an attempt to exclude it. And the rea-
son is plain. It is just because there is greater care taken
in the former case than in the latter.
The Court passed the Note with expenses.
March 1 1 .
1850.
Present,
The Lord Justice-Clehk,
Lords Mackenzie and Wood.
Her Majesty's Advocate — Sol. Gen. Moncreiff—Deas A.D. —
J. M. Bell A.D.
AGAINST
William Duncan — Anderson — Giffsrd.
Alexander Gumming — Logan.
Indictment — Relevancy — Forgery — Jurisdiction. — Held, 1st,
That it was a relevant charge against two pannels to aver that they
' both and each, or one or other,' acting in pnrsuance of an unlaw-
ful concert, and for a fraudulent purpose, adhibited the signature of
one of them to the document ; 2d, That, under the circumstances,
the words at and near Edinburgh, and elsewhere, was not too vague
a specification of the locus delicti ; and, 3d, That, in respect of .the
above words importing the commission of an offence in Scotland,
the Jury could not convict one of the pannels, who had never left
England, as art and part of an offence committed in Scotland.
AND CIRCUIT COURTS OF JUSTICIARY. 335
William Duncan, practising as a surgeon at Amble, No. bb.
in the county of Northumberland, and Alexander Dunoln"&
Gumming, practising as a surgeon and druggist, in cum^ng'
Broughton Street, Edinburgh, were charged with For- HighCom-t.
gery; As also, Using and Uttering, as genuine, a False ^^l^^'o.^''
and Forged Writing, . knowing the same to be false and "r^erf,"
forged ; As also, with Falsehood, Fraud, and Wilful Im- *=•
position ; As also. Conspiring to Commit the above
crimes, or one or more of of them :
In so far as, it being required by the Eegulations of the Royal
College of Surgeons of Edinburgh, in force in or about the year 1 844,
that every candidate for a diploma from that college should, before ob-
taining such diploma, have followed a certain prescribed course of
study, and should have laid before or furnished to the President of the
said College a tabular statement or schedule subscribed by the said
candidate, exhibiting the full extent of his professional education, and
a separate list of all classes, hospitals, and dispensaries which he had
attended during each session of his studies respectively, and should
thereupon obtain from the said president a letter or authority directing
or authorising the examinators of the said college to take him the said
candidate^ upon trial, and should thereafter appear before the examina-
tors of the said college and undergo an examination, and should only
be entitled^to receive a diploma from the said college on being found
by the said examinators to be duly qualified to practise surgery and
pharmacy ; and yon the said William Duncan and Alexander Cum-
ming having formed and concocted a false and fraudulent scheme,
machination, and design, to procure a diploma from the said Royal
College of Surgeons in name of you the said William Duncan, so as to
enable you the said William Duncan to hold yourself out to the public
as having been found duly qualified by the said Royal College to
practise surgery and pharmacy, without you the said William Duncan
actually appearing before the said examinators, or undergoing any ext
amination, or being found qualified as aforesaid, you the said William
Duncan and Alexander Cumming did, both and each, or one or other
of you, some time or times in or about the months of October, Novem-
ber, and December 1844, or in or about one or more of these months,
the particular time or times being to the prosecutor unknown, at or
near Amble aforesaid, and at or near Edinburgh, or at or near one or
other of these places, or at some time or times, and at some place or
places, to the prosecutor unknown, wickedly and feloniously, conspire,
confederate, and agree, that you the said Alexander Cumming should,
falsely and fraudulently, personate and assume the character of you
the said William Duncan, and should, in that character, apply for and
336 CAaES BEFORE THE HIGH COURT
No. 55. obtain a diploma from the said Royal College of Surgeons, in name of
D!l'ncan& y°" ^^^ ^^'"^ William Duncan, importing that you the said William
Alexander Duncan had been found duly qualified to practice surgery and pbar-
Cumming. jj^^^y^ ^nd should, falsely and fraudulently, represent and pretend to
High Court, the office-bearers and examinators and others, acting for or on behalf
1850. of *li6 said College, or to some of them, that the name of you the said
~Z 77~ Alexander Camming was William Duncan, and that you the said
&c. Alexander Cumming should, under the name of William Duncan,
undergo the aforesaid examination, prescribed by the foresaid regula-
tions, and that upon you the said Alexander Cumming obtaining a
diploma as aforesaid from the said Royal College of Surgeons, under
the name of William Duncan, the same should be delivered to you the
said William Duncan, and that you the said William Duncan should
thereafter use and act upon the same, as in all respects a diploma pro-
perly and lawfully obtained by you the said William Duncan : And
you the said Alexander Gumming did accordingly, in furtherance and
pursuance of the object and purpose of the said conspiracy, and acting
in concert with the said William Duncan, and in order to carry into
effect and accomplish the object and purpose of the said conspiracy,
some time betwixt the 1st day of October and the 5th day of Decem-
ber 1844, the particular time being to the prosecutor unknown, pro-
ceed from Amble aforesaid to Edinburgh, and clid, in or near Surgeons'
Hall, in or near Edinburgh, or at some other place in or near Edin-
burgh to the prosecutor unknown, procure or obtain from the conser-
vator for the time being of the said Royal College, or from some other
person or persons acting for the said Royal College, to the prosecutor
unknown, a printed form of a tabular statement or schedule, required
to be presented by candidates to the President of the said Royal Col-
lege as aforesaid, for the purpose of the same being filled up and pro-
perly attested, with a view to the same being presented to the said
president, in terms of the foresaid regulations : And you the said Wil-
liam Duncan and Alexander Cumming did, both and each, or one or
other of you, acting in concert as aforesaid, time and place last above
libelled, or at some other time and place in or near Edinburgh, to the
prosecutor unknown, wickedly and feloniously, falsely and fraudu-
lently, forge and adhibit, or cause or procure to be forged and ad-
hibited to a certificate prefixed to the tabular statement or schedule so
procured as aforesaid, in the following or some similar terms : ' I here-
' by certify that the subjoined summary contains a full and accurate
' account of the education which I have received, commencing session
' 1 833, as I have more particularly specified in the annexed schedules,
' pages 2 and 3,' the words or subscription, ' William Duncan,' intend-
ing the same to pass for, and to be received as, the genuine subscrip-
tion of you the said William Duncan, or of some wholly fictitious per-
son : Farther, time and placq last above libelled, or at some other
time and place in or near Edinburgh to the prosecutor unknown, you
AND CIRCUIT COURTS OF JUSTICIARY. 337
the said William Duncan and Alexander Gumming did, both and each, No. 55.
or one or other of you, acting in concert as aforesaid, wickedly and ^ °V
feloniously, falsely and fraudulently, use and utter, as genuine, the Alexander
said false and forged tabular statement or schedule and certificate, or Cumming.
one or other of them, having the said false and forged subscription High Court,
thereat, you, both and each, or one or other of you, knowing the same ^850
to be false and forged, by then and there delivering the same, or caus-
ing the same to be delivered, as a genuine document, to Dr James &c.
Simson, the then President of the said Eoyal College of Surgeons, or
to some other office-bearer of the said college to the prosecutor un-
known ; and you did, both and each, or one or other of you, acting in
concert as aforesaid, then and there, wickedly, wilfully, and feloniously,
falsely and fraudulently, represent and pretend to the said president or
other office-bearer of the said college, that you the said Alexander
Gumming was the William Duncan therein referred to, and that the
said signature ' William Duncan' at the said certificate, was the ge-
nuine subscription of you the said William Duncan ; and you the said
William Duncan and Alexander Gumming did, farther, both and each,
or one or^other of you, acting in concert as aforesaid, then and there
deliver to the said president or other office-bearer of the said college,
the tickets and certificates granted to you the said William Duncan,
and referred to and founded on in the said tabular statement or
schedule, as if the same applied to you the said Alexander Gumming,
and on the footing that the name of you the said Alexander Gumming
was William -Duncan, and this you did, to verify or confirm the state-
ments or entries contained in the said tabular statement or schedule ;
by all which, or part thereof, the said president and other office-
bearers of the said Eoyal Gollege of Surgeons, or one or more of them,
were cozened, cheated, deceived, and imposed upon, by you the said
William Duncan and Alexander Gumming, or by one or other of you,
acting in concert as aforesaid ; and the said president having directed
or authorised an examination of you the said Alexander Gumming, in
the belief that you were the William Duncan referred to in the said
tabular statement or schedule, and in the said certificate to be taken
by the examinators of the said Royal Gollege, you the said Alexander
Gumming, acting in concert as aforesaid, did attend for examination
within or near Surgeons' Hall aforesaid, on or about the 4th day of
December 1844, before and in presence of Doctor John M'Farlane,
now or lately residing in or near Charlotte Square, in or near Edin-
burgh, Doctor Richard Huie, now or lately residing in or near George
Square, in or near Edinburgh, Doctor Francis Farquharson, then re-
siding in Edinburgh, and now or lately residing at or near Finzean, in
Aberdeenshire, Doctor Robert Omond, now or lately residing in or
near Charlotte Square aforesaid, and others, or one or more of them,
examinators appointed by the said Royal Gollege of Surgeons ; and
you the said Alexander Gumming, acting in concert as aforesaid, did.
338 CASES BEFORE THE HIGH COUET
No. 55. then and there, falsely, fraudulently, and wilfully, represent yourself
DTnran'& *° ^^^ ^^^^ examinators, or to some of them, to be the said "William
Alexander Duncan, or falsely, fraudulently, and wilfully, lead or induce them to-
Gumming. bgUgye you were Wiyiam Duncan, and the person mentioned and re-
High Court, ferred to in the foresaid certificate and tabular statement or sch'edule
1850. above libelled : And the said examinators did, consequently, time and
— place last above libelled, examine you the said Alexander Cumming,
°&c. ' in terms of the said regulations, in the belief that you were the Wil-
liam Duncan referred to in the foresaid certificate and tabular state-
ment or schedule, and found you to be duly qualified to practise sur-
gery and pharmacy ; and did deliver or cause or authorize to be de-
livered to you the said Alexander Cumming, a diploma in the usual
form subscribed by the said examinators and their preses, or by some
of them, bearing or importing that you the said William Duncan, or at
least a person of the name of William Duncan, had been examined and
found duly qualified to practise surgery and pharmacy ; and you the
said Alexander Cumming did immediately, or soon thereafter, deliver the
said diploma to you the said William Duncan for the purpose of being
acted on and used by you the said William Duncan as a diploma in
your favour ; and you the said William Duncan did accept and receive
from the said Alexander Cumming the said diploma, in the full know-
ledge of the manner in which the same had been obtained by the said
Alexander Cumming as aforesaid, and did, in or near Edinburgh and
elsewhere, act upon, exhibit, and use the same as a diploma, properly
and lawfully obtained by and in favour of you the said William Dun-
can ; by all which, or part thereof, the said examinators and other
oflice-bearers of the said Royal College of Surgeons, or one or more of
them, were cozened, cheated, deceived, and imposed upon, by you the
said William Duncan and Alexander Cumming, or by one or other of
you ; and all this, or part thereof, you the said William Duncan and
Alexander Cumming did, wickedly and feloniously, in furtherance and
pursuance of the foresaid conspiracy ; and the object, purpose, and de-
sign, of the said conspiracy were thereby accomplished and carried into
efiect, or partially accomplished and carried into effect, by you the
said William Z^'Rcan and Alexander Cumming.
GiFFORD objected to the relevancy of the indictment, in
so far as it charged forgery. The conspiracy set forth was,
that the prisoner Duncan should, by means of false repre-
sentations, obtain a diploma, and the mode in which the
conspiracy was carried out, was alleged to be that one or
other of the pannels acting in concert, adhibited the word
or subscription ' William Duncan' to the document li-
belled ; it was thus left uncertain whether the subscription
AND CIRCUIT COURTS OP JUSTICIARY. 339
of Duncan was his genuine signature ; and farther, even ^?,-,.^^-
holding that the document had been signed by Cum- Duncan &
ming in Duncan's name, yet, as the indictment alleged cumming.
them to be acting in concert, it must be presumed that High Court.
he had Duncan's authority for so doing. All that was ^^Ysso.^^'
alleged therefore, amounted to falsehood, fraud, and "ForgeryT
wilful imposition libelled, and not to forgery. The *"•
indictment, moreover, was too vague both in time
and place, all that was alleged was that the prisoner
Cumming ' did, in or near Edinburgh, and else-
• where, act upon, exhibit, and use the same as a di-
' ploma,' &c. This left it uncertain whether or not
the prosecutor intended to found on the prisoner
Duncan having used the diploma in England. If so, there
ought to be a more specific statement, and if not, he
objected to the jurisdiction of the Court, inasmuch as
he had never been in Scotland.
Deas — ^The argument was, that no one could forge his
own signature ; that doctrine had been overruled in diffe-
rent cases where the object for which the signature was at-
tached, was to deceive the person to whom the docutnent
was uttered, as to whom it was intended to denote. Here
the object was alleged to be fraudulent, and that the
fraud was carried into effect, and that deception was ac-
tually practised thereby, and the Crown undertook to
prove this, and that all that took place was done in con-
cert, which made it equally forgery whether Duncan
signed the document or Cumming.
Anderson. — The question was not whether the crime
of forgery had been committed, but whether that crime
was sufficiently charged in the indictment ; it might be
r6ad as charging Duncan individually with using his
own subscription.
Lord Wood. — If Cumming forged the document, then
his crime is complete ; and surely Duncan might be art
and part in so doing.
Anderson. — If the indictment had been so laid, the
objection would not have arisen ; but it is presently
340 CASES BEFORE THE HIGH COURT
No. 55. charging both and each with adding and adhibiting the
Duncan & Subscription, and it was quite consistent therewith that
Alexander ii • j. •„
Gumming, the Signature was genuine.
High Court. The words ' elsewhere' were also too vague, looking
^um!^' *o tbe designation of the prisoner Duncan as set forth
Forgery, iQ the indictment, and the nature of the charge.
*"■ The Lord JusTicE-CLiiRK. — They do not charge prac-
tising in England as a crime, here it can only be used as
evidence to the conspiracy for obtaining a diploma ; the
finding of stolen goods in the hands of a man in Cal-
cutta, may be good evidence against him in respect of a
theft said to be committed in Edinburgh.
Lord Mackenzie. — I cannot hold this document not
to be forgery ; it is said that if Duncan did not sign him-
self, that yet as the prisoners are alleged to have acted in
concert, it must be presumed that Gumming had his
authority to sign his name, but that will not in all cases
be enough to protect the parties from the crime of for-
gery. Take the case of one man authorising the other
to sign his name to drafts for money, under an agree-
ment that as soon as he shall have got the same he shall
abscond, and that thereafter the party whose name has
been used should plead forgery as a protection against
honouring the drafts, would not this be forgery by both
parties ? I cannot doubt that it would. So in this case
the charge of fabrication and conspiracy runs through-
out the whole, and whatever difficulty there might be in
reducing to rule the definitions which have been usually
given for forgery, that only shews that the ingenuity of bad
men is greater than that of lawyers. I would, however,
have had more difficulty if it had been expressly alleged
that the signature was that of Duncan.
Lord Wood. — If it had been necessary to give an
opinion, as to whether there could be forgery in Duncan
himself signing the document, I should have had some
hesitation, but the point has not arrived.
The Lord Justice-Clerk. — No doubt we have only
to consider Mr Anderson's objection, and I have no
AND CIRCUIT COURTS OF JUSTICIARY. 341
doubt that on the indictment as framed he will be dis- N"- ^^■
• William
charged of that charge. That Gumming was to go to Duncan &
Edinburgh and present the document as the genuine sub- cumming"]
scription of himself, and thereby obtain a diploma in the High court.
name of William Duncan, is clearly charged, but whether 'I'aso.
it would make any difference that Duncan himself signed Forgery,
the document so intended to be used, and actually used for *"''
such a purpose, I doubt, but I reserve my opinion thereon.
It appeared in evidence that the prisoner Gumming
on the 4th of December 1844, passed in the name of
Duncan an examination required by the GoUege of Sur-
geons, and thereafter received a diploma also in his
name, under which the prisoner Duncan practised in
England. There was no evidence that Duncan had ever
been in Scotland, either at the time of getting the di-
ploma, or afterwards, until brought for trial.
Anderson thereupon objected, that as the prosecutor
had not proved that Duncan had done anything in Scot-
land, there was no case for the Jury. The case laid
was that of conspiracy, — had anything been proved with
reference to that in Scotland ? The conspiracy, if made,
was in England. The forgery again, if perpetrated was
here. Duncan was not here on any one occasion. Sup-
pose two or three men conspired in England to commit
a theft in Scotland. One remained in England ; two
came to Scotland, and were caught in the act. Could
it be said that this Gourt had jurisdiction to try the
third, though he was never was out of London ? If it
could be shewn that this was a crime in continuum, part
perpetrated in England, part in Scotland, the case
might be different, but they had not shown anything of
the sort.
Solicitoe-Geneeal. — It was not an objection to the
trial, in so far that the facts proved against Duncan were
committed in England wholly, they having been com-
mitted by him with reference to a crime perpetrated in
Scotland, in which we say he was art and part. The
objection went to this, that the Gourt could not try the
342 CASES BEFORE THE HIGH COCRT
w°i)fam question whether he was art and part ; it might be that
Si^xlnto ^* ^^^ ^'^^ established in fact that he was guilty, but
Camming, had uot the Court jurisdiction to declare him innocent.
High Court. The whole of that would come to this, that whenever a
I860. " crime was committed in Scotland in concert with a
Forgery, party residing in England, that you could not try the
party here because of his residence there ; and you could
not try him there, because the crime was committed
here. Suppose that rebellion had started in England,
of which the first outbreak was. to be in Scotland, could
I not try all the parties concerned in the plot even al-
though some of them had not left England ?
The Lord Justice-Clerk. — The case that you put is
peculiar, because that amounts to high treason •, but in
a case of sedition like that of Horn Tooke, could you try
it here ?
The Solicitor-General. — The Court would have
jurisdiction to try it. Take the case of the Cotton-
spinners ; — receipts were found on them from parties in
England for money, which had been given to induce the
commission of th.e offence. There was no authority to
shew that they could not have been tried here, (Hume,
vol. ii. p. 63). It did not signify how the crime or main
act was committed, the whole question was, whether the
Court was competent to try the crime ? If it was a com-
petent jurisdiction to try the crime, it necessarily fol-
lowed that the Court had jurisdiction to try the crime
of art and part. Suppose the Jury found it a fact, that
Duncan was art and part in an offence committed here,
had not the Court jurisdiction to punish ?
The Lord Justice-Clerk. — You put the trial on this
indictment, that the diploma was exhibited here, or else-
where.
The Solicitor-General. — The Crown was entitled
to prove that, in order to shew imposition on the
College here,— could he have been tried in England
for fraud on the College here ? surely not ; for if it
was a crime at all, it was committed here. The result
AND CIRCUIT COURTS OF JUSTICIARY. 343
of holding that a party in England who was art and part ^?^j'^^
in such an imposition would be, that if he could not be Duncan &
tried here, he could not be tried anywhere. Gumming.
Anderson. — The case was not one depending merely High Court.
on proof of art and part, but depended on a separate igjo.
charge of conspiracy, which was libelled as a separate Forgery,
act. Suppose the words, ' at or near Edinburgh, or ""
* other place "or places to the prosecutor unknown,' were
struck out of the indictment, and it had stood, ' at or
* near Amble aforesaid, conspired, confederated,' &c.,
could there be a doubt that that was an English crime, —
that was the present case as it came out in proof, for all
that took place subsequently, which was charged against
Duncan, referred back to the conspiracy, and was not
libelled independently as art and part of the actual im-
position ; consequently, the crime alleged was one cog-
nizable in the English courts, and if so, there was no
jurisdiction here.
The Lord Justice-Clerk. — ^This discussion has raised
a question as large and important in principle as can be
conceived, and it would be premature were we obliged
now to decide so general a point. But we do not think
this indictment framed so as to cover the case against
Duncan, and the occurrence of the case which has occa-
sioned the discussion, is matter of surprise, because it is
stated ' you Duncan did, in or near Edinburgh, act on.'
The whole of this indictment proceeds first, with an al-
legation of conspiracy. I do not mean that this is the
indictment, or the whole of it. But there is an aver-
ment of conspiracy at or near Amble, It would have
been easy to have framed an indictment, setting forth
that Duncan furnished Gumming with the necessary
documents, and Gumming, in possession of these for his
behoof, and in concert, did so and so, and having received
the diploma, com^mitted the fraud you arranged he
should perpetrate. "We abstain from saying whether
that would have been relevant. But the indictment,
after stating that your acting in concert did proceed
z
344 CASES BEFORE THE HIGH COURT
No. 55. from Amble to Edinburgh, goes on to say, — you two, time
Duncan & and pkcc kst above libelled, did forge and adhibit, and
Gumming' then you did use and utter as genuine. So that the forgery
High Court, and uttering is stated as in Scotland, and you did proceed
^7s&o!^' to represent to the President of the College that Gumming
Forgery, was Duucan ; then you or one or other did present cer-
*"■ tiiicates, so that what is done is said to be done by both
or one or other in Scotland, and not by me as the agent
of the other. And then, at the close, it is declared,
' which was delivered to you the said William Duncan,
' and you did use,' &c., from all which it would have
been impossible to suppose that William Duncan re-
mained in England, and never came to Scotland. The
prosecutor ought always to frame his indictment con-
sistently with the case he means to prove ; and if a dif-
ferent case was to be tried, the indictment should have
raised it.
Lord Mackenzie. — I concur on the special ground
on which this judgment is viewed by your Lordship,
When the objection was first stated by Mr Anderson, I
thought it unimportant, or doubtful. I took the view that
the crime was committed in Scotland, on employment
by a person in England. Suppose a man in England
hires an assassin in Scotland to shoot another, but never
comes here himself, and the man shoots the person,
would that not afford jurisdiction ? The view your
Lordship takes^ makes it clear. The indictment states
that both parties were in Scotland ; the prosecutor is
bound to prove this, — ^he has not done it. I agree in
this view, and reserve the general question.
LoED Wood concurred.
The Jury found the pannel Gumming guilty as libelled,
and Duncan not guilty.
In respect of which verdict of assize, the said Alex-
ander Gumming was sentenced to imprisonment for the
space of twelve months, and the said William Duncan
was assoilzied simpliciter. '■
AND CIRCUIT COURTS OF JUSTICIA RY. 345
NORTH CIRCUIT.
INVERNESS.
Spring 1850. April 19.
Jud^fe — The Lord Justice-Clekk.
William Welsh, Appellant — Millar.
AGAINST
J. Macphbrson, Respondent — J. M. Bell.
Police Jurisdiction. — Held that a Police Magistrate has no jurisdic-
tion to try an alleged offence, except iipon a regular complaint.
This was an appeal against a sentence pronounced in No. se.
the Police Court of Inverness under the following cir- Macpher-
cumstances : — ^°°'
The appellant had sold to a flesher in Inverness a ApriTig!*
young Ayrshire bull, which had died at his farm. The ^^^^'
flesher afterwards cut up the carcase, and portions of it ^^^^ *
were exposed to sa.le at his stall. On the allegation that
the meat was diseased, and unfit for human food, the
Procurator-fiscal presented a complaint against the
flesher in the Police Court, and, upon that complaint,
the flesher was cited to appear and answer to the charge.
A warrant was granted on the complaint in common
form to cite witnesses ; and in virtue thereof the appellant
was cited to appear as a witness at the trial of the case.
The appellant accordingly appeared under this cita-
tion ; but, instead of being dealt with as a witness, he
was arraigned at the bar as an ofifender along with the
flesher.
The appellant objected to this course of procedure,
upon which an offer of delay was made, but refused.
After evidence had been led, both the appellant and
the flesher were found guilty of exposing unwholesome
meat for sale, and the appellant was fined three guineas.
346 CASES BEFORE THE HIGH COURT
No-S6. Against this